Securities Registration: Employee Benefit Plan (s-8)
September 20 2016 - 4:17PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on September 20, 2016
Registration
No. 333-__________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
LONG
ISLAND ICED TEA CORP.
(Exact
name of registrant as specified in its charter)
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Delaware
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47-2624098
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(State
or other jurisdiction of
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(IRS
Employer
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incorporation
or organization)
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Identification
No.)
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116
Charlotte Avenue
Hicksville,
New York 11801
(Address
of Principal Executive Offices) (Zip Code)
LONG
ISLAND ICED TEA CORP. 2015 LONG-TERM INCENTIVE EQUITY PLAN
NON-PLAN
OPTIONS
(Full
title of the plan)
Philip
Thomas, Chief Executive Officer
Long
Island Iced Tea Corp.
116
Charlotte Avenue
Hicksville,
New York 11801
(Name
and address of agent for service)
(855)
542-2832
(Telephone
number, including area code, of agent for service)
with
a copy to
:
David
Alan Miller, Esq.
Jeffrey
M. Gallant, Esq.
Graubard
Miller
The
Chrysler Building
405
Lexington Avenue, 11
th
floor
New
York, NY 10174
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.
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Large
accelerated filer [ ]
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Accelerated
filer [ ]
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Non-accelerated
filer [ ]
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Smaller
reporting company [X]
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(Do
not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
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Title of securities
to be registered
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Amount to be
registered (1)
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Proposed
maximum
offering price
per share
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Proposed
maximum
aggregate
offering price
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Amount of
registration fee
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Common Stock, par value $.0001 per share, reserved for future grants under the Plan (as defined below)
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466,667
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$
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4.99
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(2)
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$
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2,328,668.33
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$
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234.50
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Common Stock, par value $.0001 per share, issuable upon exercise of the Non-Plan Options (as defined below)
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194,667
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$
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3.75
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(3)
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$
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730,001.25
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$
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73.51
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Total
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661,334
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$
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308.01
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(1)
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Pursuant
to Rule 416 promulgated under the Securities Act of 1933, as amended (the “Act”), this registration statement
also covers such additional securities that may be offered pursuant to the terms of the Long Island Iced Tea Corp. 2015 Long-Term
Incentive Equity Plan (“Plan”) as a result of one or more adjustments under the Plan to prevent dilution resulting
from one or more stock splits, stock dividends or similar transactions.
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(2)
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Pursuant
to Rule 457(c) and 457(h) promulgated under the Act, the proposed maximum offering price per share for the shares reserved
for issuance under the Plan was calculated on the basis of the average of the high and low prices of our common stock as reported
on the NASDAQ Capital Market on September 14, 2016.
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(3)
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Pursuant
to Rule 457(h) promulgated under the Act, the proposed maximum offering price per share for the shares issuable upon exercise
of certain stock options granted outside of the Plan to certain employees of the Company (the “Non-Plan Options”)
is the exercise price of such options.
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In
accordance with the provisions of Rule 462 promulgated under the Securities Act of 1933, as amended, the Registration Statement
will become effective upon filing with the Securities and Exchange Commission.
PART
I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
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Item
1.
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Plan
Information.*
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Item
2.
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Registrant
Information and Employee Plan Annual Information.*
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*
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The
information required by this Part I is omitted from this Registration Statement in accordance with rules and regulations under
the Securities Act of 1933, as amended (“Securities Act of 1933”), and the Note to Part I of Form S-8. The documents
containing the information specified in this Part I will be sent or given to employees, officers, directors or others as specified
by Rule 428(b)(1) under the Securities Act of 1933. Such documents and the documents incorporated by reference herein pursuant
to Item 3 of Part II of this registration statement, taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act of 1933.
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PART
II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item
3.
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Incorporation
of Documents by Reference.
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The
following documents that we have previously filed with the SEC are incorporated by reference in this registration statement (excluding
any reports or portions thereof that are furnished under Item 2.02 or Item 7.01 and any exhibits included with such items):
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●
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Annual
Report on Form 10-K for the fiscal year ended December 31, 2015 (filed March 22, 2016).
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●
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Quarterly
Reports on Form 10-Q for the fiscal quarters ended March 31, 2016 (filed May 9, 2016) and June 30, 2016 (filed August 15,
2016).
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●
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Current
Reports on Form 8-K dated January 18, 2016 (filed January 20, 2016), January 21, 2016 (filed January 21, 2016), February 3,
2016 (filed January 3, 2016), February 8, 2016 (filed February 8, 2016), February 11, 2016 (filed February 11, 2016), February
26, 2016 (filed February 26, 2016), March 14, 2016 (filed March 17, 2016), March 22, 2016 (filed March 22, 2016), April 1,
2016 (filed April 5, 2016), April 7, 2017 (filed April 8, 2016), April 19, 2016 (filed April 19, 2016), May 9, 2016 (filed
May 9, 2016), May 10, 2016 (filed May 10, 2016), May 10, 2016 (filed May 10, 2016), June 6, 2016 (filed June 9, 2016), July
28, 2016 (filed August 1, 2016), August 4, 2016 (filed August 5, 2016) and August 18, 2016 (filed August 24, 2016).
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●
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Form
8-A filed on June 20, 2016 registering our common stock, under Section 12(b) of the Exchange Act.
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All
documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (“Exchange Act”), prior to the filing of a post-effective amendment which indicates that all the securities
offered have been sold or which deregisters all securities then remaining unsold (excluding any reports or portions thereof that
are furnished under Item 2.02 or Item 7.01 of a Current Report on Form 8-K and any exhibits included with such items), will be
deemed to be incorporated by reference in this registration statement and to be a part of this registration statement from the
respective date of filing. Any statement contained in a document incorporated by reference in this registration statement will
be modified or superseded for all purposes to the extent that a statement contained in this registration statement or in any other
subsequently filed document which is incorporated by reference modifies or replaces the statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or amended, to constitute a part of this registration statement.
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Item
4.
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Description
of Securities.
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Not
applicable.
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Item
5.
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Interests
of Named Experts and Counsel.
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Graubard
Miller issued the opinion as to the legality of the shares of our common stock being registered pursuant to this registration
statement. Graubard Miller owns 6,250 shares of our common stock.
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Item
6.
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Indemnification
of Directors and Officers.
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Our
amended and restated certificate of incorporation provides that no director of ours will be personally liable to us or any of
our stockholders for monetary damages arising from the director’s breach of fiduciary duty as a director. However, this
does not apply with respect to any action in which the director would be liable under Section 174 of the DGCL nor does it apply
with respect to any liability in which the director (i) breached his duty of loyalty to us or its stockholders; (ii) did not act
in good faith or, in failing to act, did not act in good faith; (iii) acted in a manner involving intentional misconduct or a
knowing violation of law or, in failing to act, shall have acted in a manner involving intentional misconduct or a knowing violation
of law; or (iv) derived an improper personal benefit. This provision could have the effect of reducing the likelihood of derivative
litigation against our directors and may discourage or deter our stockholders or management from bringing a lawsuit against our
directors for breach of their duty of care, even though such an action, if successful, might otherwise have benefited us and our
stockholders.
Our
amended and restated certificate of incorporation also provides that we will indemnify any director or officer of ours to the
fullest extent permitted by law. Our bylaws further provide that we will indemnify to the fullest extent permitted by law any
person who becomes party to a proceeding by reason of the fact that he is or was an director, officer, employee or agent of ours,
or by reason of the fact that he is or was serving at our request as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. We have entered, and intend to continue to enter, into separate indemnification
agreements with our directors, executive officers and other key employees, in addition to the indemnification provided for in
our amended and restated certificate of incorporation and bylaws. We also maintain directors’ and officers’ liability
insurance.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or person controlling
us pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against
public policy as expressed in the Act and is therefore unenforceable.
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Item
7.
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Exemption
from Registration Claimed.
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Not
applicable.
See
the Exhibit Index, which is incorporated herein by reference.
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(a)
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The
undersigned Registrant hereby undertakes:
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(1)
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To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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(ii)
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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;
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(iii)
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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.
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Provided
,
however
, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic 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 that are incorporated by reference in this registration
statement.
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(2)
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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.
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(3)
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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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(b) The
undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934
(and where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(h) 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 procedures, 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 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 against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in Hicksville, New York on this 20
th
day of September, 2016.
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LONG ISLAND ICED TEA CORP.
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By:
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/s/
Philip Thomas
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Philip
Thomas, Chief Executive Officer
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POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Philip Thomas and Richard Allen,
and each of them, with full power to act without the other, such person’s true and lawful attorneys-in-fact and agents,
with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign
this registration statement, any and all amendments thereto (including post-effective amendments), and any amendments thereto
and to file the same, with exhibits and schedules thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform
each and every act and thing necessary or desirable to be done in and about the premises, as fully to all intents and purposes
as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them,
or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
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 dates indicated.
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Signatures
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Title
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Date
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By:
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/s/
Philip Thomas
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Chief
Executive Officer (Principal Executive Officer)
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September
20, 2016
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Philip
Thomas
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By:
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/s/
Richard Allen
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Chief
Financial (Principal Financial Officer
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September 20, 2016
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Richard
Allen
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and
Principal Accounting Officer)
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By:
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/s/
Julian Davidson
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Executive
Chairman
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September 20, 2016
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Julian
Davidson
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By:
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/s/
Edward Hanson
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Director
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September 20, 2016
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Edward
Hanson
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By:
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/s/
Kerry Kennedy
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Director
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September 20, 2016
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Kerry
Kennedy
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By:
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/s/
Richard Roberts
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Director
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September 20, 2016
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Richard
Roberts
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By:
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/s/
Paul Vassilakos
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Director
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September 20, 2016
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Paul
Vassilakos
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By:
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/s/
Tom Cardella
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Director
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September 20, 2016
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Tom
Cardella
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EXHIBIT
INDEX
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Exhibit
No.
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Description
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5.1
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Opinion
of Graubard Miller (filed herewith).
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10.1
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Long
Island Iced Tea Corp. 2015 Long-Term Incentive Equity Plan (filed herewith).
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10.2
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Form
of Plan Stock Option Agreement (filed herewith).
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10.3
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Form
of Non-Plan Stock Option Agreement (filed herewith).
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23.1
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Consent
of Marcum LLP (filed herewith).
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23.2
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Consent
of Graubard Miller (included in Exhibit 5.1).
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24.1
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Power
of Attorney (included on the signature page hereto).
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