As filed with the Securities and Exchange Commission on October 29, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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UNIFLEX, INC.
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(Exact name of Registrant as specified in its charter)
Delaware 11-2008652
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
383 West John Street
Hicksville, New York 11802
(516) 932-2000
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(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
Herbert Barry, Chairman
Uniflex, Inc.
383 West John Street
Hicksville, New York 11802
(516) 932-2000
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Steven Wolosky, Esq.
Olshan Grundman Frome & Rosenzweig LLP
505 Park Avenue
New York, New York 10022
(212) 753-7200
(212) 755-1467 (telecopier)
---------------------------
Approximate date of commencement of proposed sale to the
public: From time to time after this Registration Statement becomes effective.
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 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
<PAGE>
Act registration statement number of the earlier effective registration
statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant
to Rule 434, please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Proposed
Maximum Proposed
Amount Offering Maximum Amount of
Title of Shares to to be Price Per Aggregate Registration
be Registered Registered Share Offering Price Fee
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<S> <C> <C> <C> <C>
Common Stock, $.10 223,050 shares $9.50(1) $2,118,975(1) $643
par value
================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933, as amended
(the "Securities Act"), based upon the per share average of the high
and low sales prices of the common stock on the American Stock Exchange
on October 28, 1996.
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.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
PROSPECTUS
223,050 Shares
UNIFLEX, INC.
Common Stock
This Prospectus relates to the reoffer and resale by the Uniflex, Inc.
Profit Sharing Plan (the "Selling Stockholder") of 148,700 shares (the "Shares")
of the Common Stock, $.10 par value (the "Common Stock"), of Uniflex, Inc. (the
"Company"). The Shares are being reoffered and resold for the account of the
Selling Stockholder and the Company will not receive any of the proceeds from
the resale of the Shares.
The Selling Stockholder has advised the Company that the resale of the
Shares may be effected from time to time in one or more transactions on the
American Stock Exchange (the "AMEX"), in negotiated transactions or otherwise at
market prices prevailing at the time of the sale or at prices otherwise
negotiated. See "Plan of Distribution." The Selling Stockholder will bear all
expenses of the offering other than discounts, concessions or commissions on the
sale of the Shares.
The Common Stock is traded on the AMEX under the symbol "UFX." On
October 28, 1996, the closing sale price for the Common Stock, as reported by
AMEX was $9.4375.
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SEE "RISK FACTORS" AT PAGE 3 FOR A DISCUSSION OF
CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY
A PROSPECTIVE PURCHASER OF THE SHARES
OF COMMON STOCK OFFERED HEREBY
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is 1996.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549; Northwestern Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661; and Seven World Trade
Center, Suite 1300, New York, New York 10048. Copies of such material can be
obtained from the Public Reference Section of the Commission at Judiciary Plaza,
450 Fifth Street, N.W., Washington, DC 20549, at prescribed rates. Such material
may also be accessed electronically by means of the Commission's home page on
the Internet at http.//www.sec.gov. The Common Stock is traded on the AMEX under
the symbol "UFX." Reports and other information concerning the Company can be
inspected and copied at the AMEX, 86 Trinity Place, New York, New York 10006.
The Company has filed with the Commission a Registration Statement on
Form S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act with respect to the Shares offered hereby.
This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information with
respect to the Company and the securities offered hereby, reference is made to
the Registration Statement, copies of which may be obtained from the Public
Reference Section of the Commission at Fiduciary Plaza, 450 Fifth Street, N.W.,
Washington, DC 20549, at prescribed rates. Statements contained in this
Prospectus as to the contents of any contract or other document are not
necessarily complete, and in each instance, reference is made to the copy of
such contract or document filed as an exhibit to the Registration Statement,
each such statement being qualified in all respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's (i) Annual Report on Form 10-K for the fiscal year ended
January 31, 1996, (ii) Quarterly Report on Form 10-Q for the quarter ended April
30, 1996, (iii) Quarterly Report on Form 10-Q for the quarter ended July 31,
1996 and (iv) Current Report on Form 8-K, dated April 9, 1996, which have been
filed with the Commission pursuant to the Exchange Act, are incorporated by
reference in this Prospectus and shall be deemed to be a part hereof. All
documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act after the date of this Prospectus and prior to the termination
of this offering are deemed to be incorporated by reference in this Prospectus
and shall be deemed to be a part hereof from the date of filing of such
documents.
The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A, filed June 2, 1994, is incorporated by
reference in this Prospectus and shall be deemed to be a part hereof.
The Company hereby undertakes to provide without charge to each person
to whom a copy of this Prospectus has been delivered, on the written or oral
request of any such person, a copy of any or all of the documents referred to
above which have been or may be incorporated in this Prospectus by reference,
other than exhibits to such documents. Written requests for such copies should
be directed to Uniflex, Inc., 383 West John Street, Hicksville, New York 11802,
Attention: Robert Gugliotta, Vice President-Finance. Oral requests should be
directed to such officer (telephone number (516) 932-2000).
---------------
No dealer, salesman or other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus in connection with the offer made hereby, and, if given or made, such
information or representations must not be relied upon as having been authorized
-2-
<PAGE>
by the Company or the Selling Stockholder. This Prospectus does not constitute
an offer to sell, or a solicitation of an offer to buy, the securities offered
hereby to any person in any state or other jurisdiction in which such offer or
solicitation is unlawful. The delivery of this Prospectus at any time does not
imply that information contained herein is correct as of any time subsequent to
its date.
RISK FACTORS
PROSPECTIVE INVESTORS SHOULD CAREFULLY CONSIDER THE FOLLOWING RISK
FACTORS SET FORTH BELOW, AS WELL AS THE OTHER INFORMATION SET FORTH OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS.
POTENTIAL ADVERSE EFFECT ON MARKET PRICE OF COMMON STOCK
The Selling Stockholder is not restricted as to the price or prices at
which it may sell the Shares. Sales of the Shares may have an adverse effect on
the market price of the Common Stock. Moreover, the Selling Stockholder is not
restricted as to the number of Shares that may be sold at any time and it is
possible that a significant number of Shares could be sold at the same time
which may also have an adverse effect on the market price of the Common Stock.
CONTROL BY DIRECTORS AND EXECUTIVE OFFICERS
Upon completion of the offering, the directors and executive officers
of the Company will beneficially own or have voting control over approximately
2,291,793 shares of Common Stock, or 54.0%, of the outstanding shares of Common
Stock. Such persons will therefore be in a position to significantly influence
the outcome of matters submitted for shareholder approval, including election of
the Company's directors, and could thereby affect the selection of management
and direct policies of the Company.
COMPETITION
The Company competes with other companies, many of whom are divisions
or subsidiaries or larger companies with greater financial and other resources
than those of the Company.
NO CASH DIVIDENDS ANTICIPATED
Payment of cash dividends is within the discretion of the Company's
Board of Directors and will depend on, among other factors, earnings, capital
requirements and the operating and financial condition of the Company. The
Company intends to retain all future earnings for use in the development of its
business and does not currently anticipate paying any cash dividends on the
Common Stock in the foreseeable future. In addition, the Company's revolving
credit facility restricts the payment of cash dividends in any fiscal year to
10% of the Company's consolidated pretax profit.
STOCK PRICE VOLATILITY
Quarterly operating results of the Company or other companies in the
industry in which the Company operates, changes in general conditions in the
economy, the financial markets or the packaging industry, natural disasters,
changes in earnings estimates or recommendations by research analysts, or other
developments affecting the Company or its competitors could cause the market
price of the Common Stock to fluctuate substantially. In addition, in recent
years the stock market has experienced extreme price and volume fluctuations.
This volatility has had significant effect on the market prices or securities
issued by many companies for reasons unrelated to the operating performance of
these companies.
-3-
<PAGE>
RISKS ASSOCIATES WITH FORWARD LOOKING STATEMENTS
This Prospectus contains certain forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as amended (the
"Securities Act"), and Section 21E of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), which are intended to be covered by the safe
harbors created thereby. Investors are cautioned that all forward-looking
statements involve risks and uncertainty, including without limitation, the
ability of the Company to continue its expansion strategy, changes in costs of
raw materials, labor, and employee benefits, as well as general market
conditions, competition and pricing. Although the Company believes that the
assumptions underlying the forward-looking statements contained herein are
reasonable, any of the assumptions could be inaccurate, and therefore, there can
be no assurance that the forward-looking statements included in this Prospectus
will prove to be accurate. In light of the significant uncertainties inherent in
the forward-looking statements included herein, the inclusion of such
information should not be regarded as a representation by the Company or any
other person that the objectives and plans of the Company will be achieved.
MANAGEMENT OF GROWTH
The Company has experienced significant growth in recent years, and
this growth has placed significant demands on the Company's management,
operational and financial resources. There can be no assurance that if the
Company continues to grow, management will be effective in attracting and
retaining additional qualified personnel, expanding the Company's physical
facilities, integrating acquired businesses or otherwise managing growth. If the
Company is unable to manage growth effectively, the Company's business,
financial condition and operating results could be materially adversely
affected.
DEPENDENCE ON QUALIFIED PERSONNEL; DEPENDENCE ON MANAGEMENT
The ability to attract and retain highly competent executives,
professionals, sales personnel and other employees is critical to the ongoing
success of the Company. A stable and skilled work force is essential to
establishing and maintaining relationships with vendors and customers and such
relationships are critical to the Company's long-term growth. The Company has
not experienced any difficulties in attracting and retaining qualified
personnel, although there can be no assurance that it will not encounter such
problems in the future.
THE COMPANY
Uniflex, Inc. designs, manufactures and markets a broad line
of customized plastic packaging for sales and advertising promotions, clear bags
for apparel and soft goods manufacturers and specialized, recyclable bags and
other products for use in hospitals, medical laboratories, and emergency care
centers.
Medical products include patented, disposable bags for the
safe handling of specimens, and general purpose bags for personal belongings.
Specialty advertising products include handle bags, drawstring bags, tote bags,
litter bags, and other bags, in numerous shapes and sizes with a broad range of
printed graphics.
In January 1996, the Company formed Uniflex Southeast L.L.C.,
a Delaware limited liability company ("Southeast") to market and distribute
health and safety products and services in the southeastern United States.
Uniflex Southeast, Inc., a Delaware corporation and wholly-owned subsidiary of
the Company, is the Manager of Southeast and owns 80% of its equity. In March
1996, Southeast commenced operations in Roswell, Georgia.
In January 1995, the Company formed Uniflex Southwest L.L.C.,
a Delaware limited liability company ("Southwest") to manufacture and distribute
plastic packaging material in the southwestern United States. The Company is the
-4-
<PAGE>
Manager of Southwest and owns 80% of its equity. In April 1995, Southwest
commenced operations in Albuquerque, New Mexico.
In July 1993, the Company acquired certain of the assets of
Haran Packaging Co., Inc., a New York corporation engaged in the business of
manufacturing, distributing and selling packaging materials.
The Company through Hantico, Inc. (a Delaware corporation
organized in December 1992) ("Hantico"), a wholly-owned subsidiary, produced
buttons, button products, badges, ribbons, mirrors and magnets for the
advertising specialty marketplace from December 1992 until January 1995.
Celluloid political and advertising buttons comprised Hantico's major product
line. In January 1995, Hantico sold substantially all of its assets to an
unaffiliated third party.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the reoffer and
resale of the Shares offered hereby by the Selling Stockholder.
SELLING STOCKHOLDER
The following table sets forth (i) the number of shares of Common Stock
owned by the Selling Stockholder, (ii) the number of shares to be offered for
resale by the Selling Stockholder and (iii) the number and percentage of shares
of Common Stock to be held by the Selling Stockholder after the completion of
the offering.
<TABLE>
<CAPTION>
Number of shares of
Common Stock/
Number of Percentage of Class
Number of shares Shares to to be Owned After
of Common Stock be Offered Completion of the
Name Beneficially Owned for Resale Offering
- ------------------------------ ---------------------------- ------------------ -----------------------------
<S> <C> <C> <C>
Uniflex, Inc.
Profit Sharing
Plan........................... 223,050 223,050 0/0%
</TABLE>
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is American Stock
Transfer & Trust Company, New York, New York.
PLAN OF DISTRIBUTION
This Prospectus covers 223,050 shares of Common Stock. All of the
Shares offered hereby are being sold by the Selling Stockholder. The Company
will realize no proceeds from the sale of the Shares by the Selling Stockholder.
The distribution of the Shares by the Selling Stockholder is not
subject to any underwriting agreement. The Selling Stockholder may sell the
Shares offered hereby from time to time in transactions in the over-the-counter
market, in negotiated transactions, or a combination of such methods of sale, at
fixed prices which may be changed, at market prices prevailing at the time of
sale, at prices relating to prevailing market prices or at negotiated prices.
The Selling Shareholder may effect such transactions by selling the Shares to or
through broker-dealers, and such broker-dealers may receive compensation in the
form of discounts, concessions or commissions from the Selling Stockholder
and/or the purchasers of the Shares for whom such broker-dealers may act as
agents or to whom they sell as principals, or both (which compensation as to a
particular broker-dealer might be in excess of the customary commissions). The
Selling Stockholder and any broker-dealers that participate with the Selling
Shareholder in the distribution of the Shares may be deemed to be underwriters
within the meaning of Section 2(11) of the Securities Act and any commissions
received by
-5-
<PAGE>
them and any profit on the resale of the Shares commissioned by them may be
deemed to be underwriting commissions or discounts under the Securities Act.
Brokers' commissions and dealers' discounts, taxes and other selling expenses to
be borne by the Selling Stockholder are not expected to exceed normal selling
expenses for sales over-the-counter or otherwise, as the case may be. The
registration of the Shares under the Securities Act shall not be deemed an
admission by the Selling Shareholder or the Company that the Selling Shareholder
are underwriters for purposes of the Securities Act of any Shares offered under
this Prospectus.
In order to comply with the securities laws of certain states, if
applicable, the Shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
Shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with by the Company and the Selling
Stockholder.
Under applicable rules and regulations under the Exchange Act, any
person engaged in the distribution of the Shares may not simultaneously engage
in market-making activities with respect to the Common Stock for a period of two
business days prior to the commencement of such distribution. In addition and
without limiting the foregoing, the Selling Stockholder will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, including without limitation, Rules 10b-6, 10b-6A and 10b-7, which
provisions may limit the timing of the purchases and sales of shares of Common
Stock by the Selling Stockholder.
The Selling Stockholder is not restricted as to the price or prices at
which it may sell the Shares. Sales of such Shares may have an adverse effect on
the market price of the Common Stock. Moreover, the Selling Stockholder is not
restricted as to the number of Shares that may be sold at any time and it is
possible that a significant number of Shares could be sold at the same time
which may also have an adverse effect on the market price of the Common Stock.
The Selling Stockholder will pay all fees and expenses incident to the
registration of the Shares, other than discounts, concessions or commissions.
LEGAL MATTERS
The legality of the Shares offered by this Prospectus will be passed
upon for the Company by Olshan Grundman Frome & Rosenzweig LLP, New York, New
York. Members of Olshan Grundman Frome & Rosenzweig LLP own 96,000 shares of
Common Stock and options to purchase 60,000 shares of Common Stock. Steven
Wolosky, a member of Olshan Grundman Frome & Rosenzweig LLP, is a Director of
the Company.
EXPERTS
The consolidated balance sheet of the Company as of January 31, 1996,
and the related consolidated statements of income, changes in stockholders'
equity and cash flows for the year then ended have been incorporated herein by
reference upon the report, dated April 12, 1996 of Patrusky, Mintz & Semel,
independent certified public accountants, and upon the authority of said firm as
experts in accounting and auditing.
The consolidated balance sheet of the Company as of January 31, 1995
and the related consolidated statements of income, changes in stockholders'
equity and cash flows for each of the two years in the period ended January 31,
1995 have been incorporated herein by reference upon the report, dated March 21,
1995 of Miller, Ellin & Company, independent certified public accountants, and
upon the authority of said firm as experts in accounting and auditing.
-6-
<PAGE>
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
The Certificate of Incorporation of the Company provides that the
Company shall indemnify its officers and directors to the fullest extent
permitted by Delaware law.
The Company has a directors and officers insurance policy in the amount
of $2,000,000, insuring directors and officers against loss arising from certain
acts in their capacities.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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 of whether such indemnification by it against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
-7-
<PAGE>
================================================================================
No dealer, salesperson or any other person is authorized in connection with any
offering made hereby to give any information or to make any representation not
contained in this Prospectus, and if given or made, such information or
representation must not be relied upon as having been authorized by the Company
or any other person. This Prospectus does not constitute an offer to sell or the
solicitation of an offer to buy any of the securities offered hereby by anyone
in any state in which such offer or solicitation is not authorized or in which
the person making the offer or solicitation is not qualified to do so or to any
person to whom it is unlawful to make such offer or solicitation. Neither the
delivery of this Prospectus nor any sale made hereunder shall under any
circumstance create any implication that information contained herein is correct
as of any date subsequent to the date hereof.
-------------
TABLE OF CONTENTS
Page
----
Available Information.................................2
Incorporation of Certain
Documents By Reference..............................2
Risk Factors..........................................3
The Company...........................................4
Use of Proceeds.......................................5
Selling Stockholder...................................5
Transfer Agent and Registrar .........................5
Plan of Distribution..................................5
Legal Matters.........................................6
Experts...............................................6
Indemnification for Securities Act Liabilities........7
================================================================================
UNIFLEX, INC.
223,050 SHARES OF
COMMON STOCK
---------------------------
PROSPECTUS
---------------------------
, 1996
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses which will be paid
by the Selling Stockholder in connection with the securities being registered.
With the exception of the SEC Registration Fee, all amounts are estimates.
SEC Registration Fee................................... $ 643
Accounting Fees and Expenses........................... 2,500
Legal Fees and Expenses................................ 10,000
Miscellaneous Expenses................................. 6,857
----------
Total.................................................. $ 20,000
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Except as hereinafter set forth, there is no statute, charter
provision, by-law, contract or other arrangement under which any controlling
person, director or officer of the Corporation is insured or indemnified in any
manner against liability which he may incur in his capacity as such.
Paragraph 7(d) of the Corporation's Certificate of Incorporation
provides as follows:
Each Director, officer and employee, past or present, of the
Corporation, and each person who serves or may have served at the request of the
Corporation as a Director, trustee, officer or employee of another corporation,
association, trust or other entity and their respective heirs, administrators
and executors, shall be indemnified by the Corporation in accordance with, and
to the fullest extent permitted by the provisions of the General Corporation Law
of the State of Delaware as it may from time to time be amended. Each agent of
the Corporation and each person who serves or may have served at the request of
the Corporation as an agent of another corporation, or as an employee or agent
of any partnership, joint venture, trust or other enterprise may, in the
discretion of the Board of Directors, be indemnified by the Corporation to the
same extent as provided herein with respect to Directors, officers and employees
of the Corporation. The provisions of this paragraph (d) shall apply to any
member of any Committee appointed by the Board of Directors as fully as though
such person shall have been an officer or Director of the Corporation.
Paragraph 7(e) of the Corporation's Certificate of Incorporation
provides as follows:
The provisions of this Article SEVENTH shall be in addition to and not
in limitation of any other rights, indemnities, or limitations of liability to
which any Director or officer may be entitled, as a matter of law or under any
By-Law, agreement, vote of stockholders or otherwise.
Article VII of the By-laws of the Corporation provides as follows:
The corporation shall, to the fullest extent permitted by Section 145
of the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, indemnify any and all persons whom it shall have power
to indemnify under said section from and against any and all of the expenses,
liabilities or other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any other By-Law,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
<PAGE>
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
Section 145 of the General Corporation Law of the State of Delaware
provides as follows:
(a) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by 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,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by 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 and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b) of this
section. Such determination shall be made (1) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil criminal administrative or investigative action,
suit or proceeding may be paid by the corporation in advance of the final
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<PAGE>
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
corporation as authorized in this section. Such expenses (including attorneys'
fees) incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director. officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against 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 this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director. officer, employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
ITEM 16. EXHIBITS.
EXHIBIT NO. DESCRIPTION
4 Articles of Incorporation (Incorporated by reference to the
Registrant's Annual Report on Form 10-K for its fiscal year
ended January 31, 1981).
5 Opinion of Olshan Grundman Frome & Rosenzweig LLP with respect
to the securities registered hereunder.
II-3
<PAGE>
23.1 Consent of Patrusky, Mintz & Semel.
23.2 Consent of Miller, Ellin & Company.
23.3 Consent of Olshan Grundman Frome & Rosenzweig LLP (included
within Exhibit 5).
24 Power of Attorney (included on signature page to this
Registration Statement).
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
a) To file, during any period in which offers
or sales are being made, a post-effective amendment to this registration
statement 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.
b) That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
c) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Act and is, therefore, unenforceable. In the event that a claim for
indemnification against each 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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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Hicksville, State of New York on the 29th day of
October, 1996.
UNIFLEX, INC.
(Registrant)
By:/s/Herbert Barry
------------------------
Herbert Barry, Chairman
of the Board
Each person whose signature appears below hereby authorizes Herbert
Barry and Robert K. Semel, and any of them acting individually, with full power
of substitution to file one or more amendments, including post-effective
amendments, to the Registration Statement, which Amendments may make such
changes as any of them deems appropriate, and each person whose signature
appears below, individually and in each capacity stated below, hereby appoints
Herbert Barry and Robert K. Semel and any of them acting individually, with full
power of substitution, as Attorney-in-Fact to execute his name on his behalf to
file any such Amendments to this Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/Warner J. Heuman Director October 29, 1996
- -----------------------
Warner J. Heuman
/s/Herbert Barry Chairman of the Board and October 29, 1996
- ----------------------- Director
Herbert Barry
/s/Erich Vetter Director October 29, 1996
- -----------------------
Erich Vetter
/s/Robert K. Semel President, Secretary and October 29, 1996
- ----------------------- Director
Robert K. Semel
/s/Kurt Vetter First Vice President- October 29, 1996
- -----------------------
Kurt Vetter Engineering and Director
/s/Manfred M. Heuman Director October 29, 1996
- -----------------------
Manfred M. Heuman
/s/Robert Gugliotta Vice President-Finance, October 29, 1996
- ----------------------- Treasurer and Controller
Robert Gugliotta
/s/Martin Brownstein Senior Vice President and October 29, 1996
- ----------------------- Director
Martin Brownstein
/s/Martin Gelerman Director October 29, 1996
- -----------------------
Martin Gelerman
/s/Steven Wolosky Director October 29, 1996
- -----------------------
Steven Wolosky
II-5
October 28, 1996
OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP
505 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 753-7200
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, DC 20549
Re: Uniflex, Inc. - Registration Statement on Form S-3
--------------------------------------------------
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-3
dated the date hereof (the "Registration Statement"), filed with the Securities
and Exchange Commission by Uniflex, Inc., a Delaware corporation (the
"Company"). The Registration Statement relates to an aggregate of 223,050 shares
(the "Shares") of common stock, par value $.10 per share (the "Common Stock").
We advise you that we have examined originals or copies
certified or otherwise identified to our satisfaction of the Certificate of
Incorporation and By-laws of the Company, minutes of meetings of the Board of
Directors and stockholders of the Company and such other documents, instruments
and certificates of officers and representatives of the Company and public
officials, and we have made such examination of the law, as we have deemed
appropriate as the basis for the opinion hereinafter expressed. In making such
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, and the conformity to original
documents of documents submitted to us as certified or photostatic copies.
Based upon the foregoing, we are of the opinion that the
Shares have been duly and validly issued, and are fully paid and non-assessable.
<PAGE>
OLSHAN GRUNDMAN FROME & ROSENZWEIG
October 28, 1996
Page -2-
We consent to the reference to this firm under the caption
"Legal Matters" in the Prospectus.
Robert L. Frome, a director and stockholder of the Company, is
a partner of this firm. Other members of the firm are stockholders of the
Company.
Very truly yours,
/s/ Olshan Grundman Frome & Rosenzweig LLP
------------------------------------------
OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP
EXHIBIT 23.1
PATRUSKY, MINTZ & SEMEL
CERTIFIED PUBLIC ACCOUNTANTS
22 CORTLANDT STREET
NEW YORK, N.Y. 10007
(212) 732-2600
TELEX 6971510
TELEFAX (212) 374-1967
Consent of Independent Certified Public Accountants
The Board of Directors
Uniflex, Inc.
We hereby consent to the incorporation by reference in this registration
statement of our report dated April 12, 1996 appearing in the annual report on
Form 10-K of Uniflex, Inc. for the fiscal year ended January 31, 1996 and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ Patrusky, Mintz & Semel
---------------------------
PATRUSKY, MINTZ & SEMEL
October 24, 1996
MILLER, ELLIN & COMPANY
Certified Public Accountants
International Plaza
750 Lexington Avenue
New York, New York 10022-1200
(212) 750-9100
Fax (212) 750-2727
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Uniflex, Inc.
We hereby consent to the incorporation by reference in this
registration statement of our report dated March 21, 1995 appearing in the
annual report on Form 10-K of Uniflex, Inc. for the fiscal year ended January
31, 1996 and to the reference to our firm under the heading "Experts" in the
prospectus.
/s/Miller, Ellin & Company
----------------------------
MILLER, ELLIN & COMPANY
October 22, 1996
