As filed with the Securities and Exchange
Commission on March 18, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SYNACOR, INC.
(Exact name of registrant as specified
in its charter)
Delaware |
16-1542712 |
(State or other jurisdiction of
incorporation or organization)
|
(IRS Employer
Identification No.)
|
40 La Riviere Drive, Suite 300
Buffalo, NY 14202
(Address of Principal Executive Offices)
(Zip Code)
Synacor, Inc. 2012 Equity Incentive Plan
(Full title of the plan)
Himesh Bhise
President and Chief Executive Officer
Synacor, Inc.
40 La Riviere Drive, Suite 300
Buffalo, NY 14202
(Name and address of agent for service)
(716) 853-1362
(Telephone number, including area code,
of agent for service)
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 |
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Accelerated filer |
¨ |
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Non-accelerated filer |
x (Do
not check if a smaller reporting company) |
Smaller reporting company |
¨ |
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered | |
Amount to be Registered (1) | | |
Proposed Maximum Offering Price per Share | | |
Proposed Maximum Aggregate Offering Price | | |
Amount of Registration Fee | |
Common Stock, $0.01 par value | |
| 1,095,668 (2) | | |
| $2.36 (3) | | |
$ | 2,585,776 | | |
$ | 300.47 | |
(1) |
Pursuant to Rule
416(a) promulgated under the Securities Act of 1933, as amended (the “1933 Act”), this Registration Statement shall
also cover any additional shares of Registrant’s Common Stock that become issuable under the Synacor, Inc. 2012 Equity Incentive
Plan (the “2012 Plan”) by reason of any stock dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration that increases the number of the outstanding shares of Registrant’s Common
Stock. |
(2) |
Represents shares of Common Stock added to the 2012 Plan pursuant to the evergreen increase provision of the 2012 Plan. |
(3) |
Estimated in accordance with Rule 457(c) promulgated under the 1933 Act solely for the purpose of calculating the amount of the registration fee on the basis of the average of the high and low price per share of the Registrant’s Common Stock as reported on the NASDAQ Global Market on March 13, 2015. |
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. |
Incorporation of Documents by Reference |
Synacor, Inc. (the “Registrant”)
hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities
and Exchange Commission (the “SEC”):
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(a) |
The Registrant’s Annual Report on Form 10-K (as amended) for the fiscal year ended December 31, 2014, filed with the SEC on March 12, 2015, pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the “1934 Act”), which contains the Registrant’s audited financial statements for the latest fiscal year for which such statements have been filed; |
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(b) |
All other reports filed by the Registrant pursuant to Section 13(a) or Section 15(d) of the 1934 Act since December 31, 2014; and |
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(c) |
The description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement No. 001-33843 on Form 8-A filed with the SEC on January 30, 2012, pursuant to Section 12 of the 1934 Act, including any amendment or report filed for the purpose of updating such description. |
All documents, reports and definitive proxy
or information statements filed pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of filing of such documents.
Item 4. |
Description of Securities |
Not applicable.
Item 5. |
Interests of Named Experts and Counsel |
Not applicable.
Item 6. |
Indemnification of Directors and Officers |
The Registrant’s amended and restated
certificate of incorporation and amended and restated bylaws contain provisions relating to the limitation of liability and indemnification
of directors and officers. The amended and restated certificate of incorporation provides that our directors will not be personally
liable to us or our stockholders for monetary damages for any breach of fiduciary duty as a director, except for liability:
• |
for any breach of the director’s duty of loyalty to us or our stockholders; |
• |
for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; |
• |
in respect of unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law; or |
• |
for any transaction from which the director derives any improper personal benefit. |
Our amended and restated certificate of
incorporation also provides that if Delaware law is amended after the approval by our stockholders of the certificate of incorporation
to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of our directors
will be automatically eliminated or limited to the fullest extent permitted by Delaware law.
Our amended and restated bylaws provide
that we will indemnify our directors and officers to the fullest extent permitted by Delaware law, as it now exists or may in the
future be amended, against all expenses and liabilities reasonably incurred by their being a director or officer or in connection
with their service for or on our behalf. Our amended and restated bylaws provide that we shall advance the expenses incurred by
a director or officer in advance of the final disposition of a proceeding where the right of indemnification is applicable. Our
amended and restated bylaws also authorize us to indemnify any of our employees or agents and permit us to secure insurance on
behalf of any officer, director, employee or agent for any liability arising out of his or her action in that capacity, whether
or not Delaware law would otherwise permit indemnification.
In addition to the indemnification provided
for in its amended and restated certificate of incorporation and bylaws, the Registrant has entered into indemnification agreements
with each of its directors and executive officers and certain other key employees. The form of agreement provides that the Registrant
will indemnify each of its directors, executive officers and such key employees against any and all expenses incurred by that director,
executive officer or key employee because of his or her status as one of the Registrant’s directors, executive officers or
key employees, to the fullest extent permitted by Delaware law, the Registrant’s amended and restated certificate of incorporation
and the Registrant’s amended and restated bylaws (except in a proceeding initiated by such person without board approval).
In addition, the form agreement provides that, to the fullest extent permitted by Delaware law, the Registrant will advance all
expenses incurred by its directors, executive officers and such key employees in connection with a legal proceeding in which they
may be entitled to indemnification.
Item 7. |
Exemption from Registration Claimed |
Not applicable.
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Incorporated by Reference |
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Filed
Herewith |
Exhibit
Number |
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Exhibit
Description |
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Form |
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File
No. |
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Exhibit |
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Filing
Date |
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3.1 |
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Fifth Amended and Restated Certificate of Incorporation |
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S-1/A |
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333-178049 |
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3.2 |
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January 30,
2012 |
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3.2 |
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Amended and Restated Bylaws of the Registrant |
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S-1/A |
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333-178049 |
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3.4 |
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January 30,
2012 |
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4.1 |
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Reference is made to Exhibits 3.1 and 3.2 |
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4.2 |
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Specimen Common Stock Certificate |
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S-1/A |
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333-178049 |
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4.2 |
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February 3,
2012 |
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5.1 |
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Opinion and Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP. |
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X |
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23.1 |
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Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm. |
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X |
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23.2 |
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Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP is contained in Exhibit 5.1. |
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X |
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24.1 |
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Power of Attorney (incorporated by reference to Page 4 of this Registration Statement) |
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X |
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99.1 |
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Synacor, Inc. 2012 Equity Incentive Plan |
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S-1/A |
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333-178049 |
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10.4 |
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January 18,
2012 |
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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 1933 Act; (ii) to reflect in the prospectus any
facts or events arising after the effective date of this 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 this 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 SEC 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; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information
in this Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall not apply if the information
required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the
SEC by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference in this
Registration Statement; (2) that for the purpose of determining any liability under the 1933 Act each such post-effective
amendment shall be deemed to be a new registration statement relating to the securities offered therein and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) to remove from registration
by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
B. The undersigned Registrant hereby undertakes
that, for purposes of determining any liability under the 1933 Act, each filing of the Registrant’s annual report pursuant
to Section 13(a) or Section 15(d) of the 1934 Act that is incorporated by reference in this 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 1933 Act may be permitted to directors, officers or controlling persons of the Registrant pursuant to the indemnification
provisions summarized in Item 6 or otherwise, the Registrant has been advised that, in the opinion of the SEC, such indemnification
is against public policy as expressed in the 1933 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 1933 Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the 1933
Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Buffalo, State of New York on this 18th day of March, 2015.
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SYNACOR, INC. |
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By: |
/s/ William J. Stuart
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William J. Stuart |
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Chief Financial Officer |
That the undersigned officers and directors
of Synacor, Inc., a Delaware corporation, do hereby constitute and appoint William J. Stuart and Himesh Bhise, and either of them,
the lawful attorneys-in-fact and agents with full power and authority to do any and all acts and things and to execute any and
all instruments which said attorneys and agents, and either one of them, determine may be necessary or advisable or required to
enable said corporation to comply with the Securities Act of 1933 Act, as amended, and any rules or regulations or requirements
of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the
foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers
and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and
post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or
in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies
and confirms all that said attorneys and agents, or either one of them, shall do or cause to be done by virtue hereof. This Power
of Attorney may be signed in several counterparts.
Pursuant to the requirements of the 1933
Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature |
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Title |
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Date |
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/s/ Himesh Bhise
Himesh Bhise
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President, Chief Executive Officer and Director
(Principal Executive Officer)
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March 18, 2015
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/s/ William J. Stuart
William J. Stuart
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Chief Financial Officer
(Principal Financial and Accounting Officer)
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March 18, 2015 |
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/s/ Marwan Fawaz
Marwan Fawaz
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Director |
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March 18, 2015 |
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/s/ Gary L. Ginsberg
Gary L. Ginsberg
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Director |
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March 18, 2015 |
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/s/ Andrew Kau
Andrew Kau
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Director |
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March 18, 2015 |
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/s/ Jordan Levy
Jordan Levy
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Director |
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March 18, 2015 |
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/s/ Michael J. Montgomery
Michael J. Montgomery
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Director |
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March 18, 2015 |
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/s/ Scott Murphy
Scott Murphy
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Director |
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March 18, 2015 |
EXHIBIT INDEX
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Incorporated by Reference |
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Filed
Herewith |
Exhibit
Number |
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Exhibit
Description |
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Form |
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File
No. |
|
Exhibit |
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Filing
Date |
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3.1 |
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Fifth Amended and Restated Certificate of Incorporation |
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S-1/A |
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333-178049 |
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3.2 |
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January 30,
2012 |
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3.2 |
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Amended and Restated Bylaws of the Registrant |
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S-1/A |
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333-178049 |
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3.4 |
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January 30,
2012 |
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4.1 |
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Reference is made to Exhibits 3.1 and 3.2 |
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4.2 |
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Specimen Common Stock Certificate |
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S-1/A |
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333-178049 |
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4.2 |
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February 3,
2012 |
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5.1 |
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Opinion and Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP. |
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X |
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23.1 |
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Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm. |
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X |
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23.2 |
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Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP is contained in Exhibit 5.1. |
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X |
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24.1 |
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Power of Attorney (incorporated by
reference to Page 4 of this Registration Statement) |
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X |
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99.1 |
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Synacor, Inc. 2012 Equity Incentive Plan |
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S-1/A |
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333-178049 |
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10.4 |
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January 18,
2012 |
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Exhibit 5.1
March 18, 2015
Synacor, Inc.
40 La Riviere Drive, Suite 300
Buffalo, NY 14202
Re: |
Synacor, Inc. (the “Company”) Registration Statement on Form S-8 for 1,095,668 shares of Common Stock |
Ladies and Gentlemen:
We refer to your registration statement on Form S-8 (the “Registration
Statement”) under the Securities Act of 1933, as amended (the “Act”) in connection with the registration of 1,095,668
shares of Common Stock (the “Shares”) issuable under the Synacor, Inc. 2012 Equity Incentive Plan (the “Plan”).
As your counsel, we have examined such matters of fact and questions
of law as we have deemed necessary in order to render the opinion set forth herein. In connection with our opinion expressed below,
we have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources
believed by us to be responsible. We express no opinion as to matters governed by any laws other than the laws of the Delaware
General Corporation Law and the federal laws of the United States.
Based upon and subject to the foregoing, we advise you that,
in our opinion, when the Shares have been issued and sold pursuant to the applicable provisions of the Plan, and in accordance
with the Registration Statement, such Shares will be validly issued, fully paid and nonassessable shares of the Company’s
Common Stock.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent
is required under Section 7 of the Act.
Very truly yours,
/s/ Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report relating to the consolidated financial statements of Synacor, Inc. and subsidiaries (the “Company”)
dated March 12, 2015, appearing in the Annual Report on Form 10-K of Synacor, Inc. for the year ended December 31, 2014.
/s/ Deloitte & Touche LLP
Williamsville, New York
March 18, 2015
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