Securities Registration: Employee Benefit Plan (s-8)
April 27 2017 - 6:11AM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
ProPhase
Labs, Inc.
(Exact
name of Registrant as specified in its charter)
Delaware
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23-2577138
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(State
of or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
No.)
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621
N. Shady Retreat Road,
Doylestown,
Pennsylvania 18901
(Address
of Principal Executive Offices) (Zip Code)
Amended
and Restated 2010 Equity Compensation Plan
(Full
title of the plan)
Ted
Karkus
Chief
Executive Officer
621
N. Shady Retreat Road
Doylestown,
Pennsylvania 18901
(Name
and address of agent for service)
Tel:
(215) 345-0919
(Telephone
number, including area
code,
of agent for service)
Copy
to:
Herbert
Kozlov, Esq.
Aron
Izower, Esq.
Reed
Smith LLP
599
Lexington Avenue
New
York, New York 10022
Tel:
(212) 521-5400; Fax: (212) 521-5450
Indicate
by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth 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 [ ]
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Smaller
reporting company [X]
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Emerging
growth 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 (2)
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Proposed Maximum Aggregate
Offering Price (2)
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Amount of
Registration Fee
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Common Stock,
$0.0005 par value
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700,000
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$
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1.91
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$
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1,337,000
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$
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154.96
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(1)
This Registration Statement is being filed to register an additional 700,000 shares of common stock, par value $0.0005 per share,
of ProPhase Labs, Inc. that may be issued pursuant to the Amended and Restated 2010 Equity Compensation Plan (the “
Plan
”).
Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “
Securities Act
”), this Registration
Statement on Form S-8 also covers such additional and indeterminate number of shares of common stock that may be necessary to
adjust the number of shares of common stock reserved for delivery pursuant to the Plan in accordance with the anti-dilution provisions
of the Plan as a result of a share split, share dividend, recapitalization or other similar transaction or adjustment affecting
the common stock as specified in such anti-dilution provisions.
(2)
Estimated solely for the purpose of computing the proposed maximum aggregate offering price and the registration fee pursuant
to Rules 457(c) and 457(h) of the General Rules and Regulations promulgated under the Securities Act and computed on the basis
of $1.91 per share, which was the average of the high and low prices for the Common Stock as reported on the Nasdaq Capital Market
on April 25, 2017.
EXPLANATORY
NOTE
This
Registration Statement is filed for the purpose of registering an additional 700,000 shares of common stock, par value $0.0005
per share (the “
Common Stock
”), of ProPhase Labs, Inc. (the “
Company
”) pursuant to the Company’s
Amended and Restated 2010 Equity Compensation Plan (the “
Plan
”). This registration of 700,000 shares of Common
Stock will increase the number of shares registered for issuance under the Plan to an aggregate of 3,181,500 shares of Common
Stock, subject to adjustment as provided in the Plan. Pursuant to General Instruction E to Form S-8, the contents of the Registration
Statement on Form S-8, filed on September 30, 2010 (Registration No. 333-169697) and the Registration Statement on Form S-8, filed
on July 10, 2013 (Registration No. 333-189875), are incorporated by reference into this Registration Statement, except as amended
hereby. Pursuant to General Instruction E of Form S-8, all information that has been incorporated by reference from these earlier
registration statements is not repeated in this Registration Statement.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference
.
The
following documents, which have been previously filed by Registrant with the Securities and Exchange Commission (the “
Commission
”),
shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof:
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1.
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Our
Annual Report on Form 10-K for the fiscal year ended December 31, 2016, filed with the Commission on February 24, 2017.
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2.
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Our
Current Reports on Form 8-K filed with the Commission on January 19, 2017, March 29, 2017 and April 19, 2017.
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3.
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Our
proxy statement on Schedule 14A, as filed with the Commission on April 20, 2017, to the extent incorporated by reference in
our Annual Report on Form 10-K for the year ended December 31, 2016.
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4.
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The
description of our Common Stock set forth in the Company’s registration statement on Form 8-A, filed with the Commission
on October 25, 1996, including any amendments or reports filed for the purpose of updating such description.
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All
documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities and Exchange Act
of 1934, as amended, before filing a post-effective amendment to this Registration Statement that indicates that all of the shares
of Common Stock offered have been sold or which deregisters all of such shares the remaining unsold, shall be deemed to be incorporated
by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. In no event, however,
will any information that the Company discloses under Item 2.02 or 7.01 of any Current Report on Form 8-K (unless otherwise indicated
therein), including any exhibits furnished with such report, that the Company may from time to time furnish to the Commission
be incorporated by reference into, or otherwise become part of, this Registration Statement. Any statement contained herein or
in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document, which
is, or is deemed to be, incorporated by reference, herein modifies or supersedes such earlier statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item
6. Indemnification of Directors and Officers
.
Our
bylaws provide for indemnification of our directors and officers to the fullest extent permitted by Delaware law. Section 145
of the Delaware General Corporation Law (the “
DGCL
”) provides that a corporation may indemnify any director,
officer, employee or agent who was or is a party or is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (other than an action by or in the right of the corporation), by reason of service in that capacity, against
expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by
such person in connection with such action, suit or proceeding if such person 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. However, with respect to actions by or in the right of the corporation,
no indemnification shall be made with respect to 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
is 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 such court shall deem proper. A director
or officer who is successful, on the merits or otherwise, in defense of any proceeding subject to the Delaware corporate statutes’
indemnification provisions must be indemnified by the corporation for reasonable expenses incurred in connection therewith, including
attorneys’ fees.
Article
V, Section 1 of our bylaws provides that the Company shall indemnify directors and officers under certain circumstances for liabilities
and expenses incurred by reason of their activities in such capacities, if the individual acted in good faith and in a manner
such individual reasonably believed to be in or not opposed to the best interests of the Company. We also have entered into indemnification
agreements with our executive officers and directors and provide indemnity insurance pursuant to which directors and officers
are indemnified or insured against liability or loss under certain circumstances.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore,
unenforceable.
The
above discussion of our bylaws and Section 145 of the DGCL is not intended to be exhaustive and is qualified in its entirety by
such bylaws and statute.
Item
8. Exhibits
.
The
following exhibits are filed with or incorporated by reference into this Registration Statement and made a part hereof.
Exhibit No.
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Description
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4.1
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Articles of Conversion, as filed with the Secretary
of State of the State of Nevada on June 18, 2015 (incorporated by reference to Exhibit 3.1 of Form 8-K filed with the SEC
on June 19, 2015)
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4.2
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Certificate of Conversion, as filed with the
Secretary of State of the State of Delaware on June 18, 2015 (incorporated by reference to Exhibit 3.2 of Form 8-K filed with
the SEC on June 19, 2015)
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4.3
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Certificate of Incorporation, as filed with
the Secretary of State of the State of Delaware on June 18, 2015 (incorporated by reference to Exhibit 3.3 of Form 8-K filed
with the SEC on June 19, 2015)
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4.4
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Bylaws, effective June 18, 2015 (incorporated
by reference to Exhibit 3.4 of Form 8-K filed with the SEC on June 19, 2015)
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4.1
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Investment Agreement by and between the Company
and Dutchess, dated as of July 30, 2015 (incorporated by reference to Exhibit 4.1 of the registration statement on Form S-3
filed on August 5, 2015)
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4.2
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Registration Rights Agreement by and between
the Company and Dutchess, dated as of July 30, 2015 (incorporated by reference to Exhibit 4.2 of the registration statement
on Form S-3 filed on August 5, 2015)
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5.1
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Opinion of Reed Smith LLP
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23.1
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Consent of EisnerAmper LLP
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23.2
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Consent of Reed Smith LLP (included in Exhibit
5.1)
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24.1
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Power of Attorney (included on signature page
hereto)
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99.1
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Amended and Restated 2010 Equity Compensation
Plan (incorporated by reference to Exhibit A to Schedule 14A filed with the SEC on April 18, 2016)
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SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, ProPhase Labs, Inc. 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 Doylestown, Pennsylvania, on April 26, 2017.
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PROPHASE LABS, INC.
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By:
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/s/
Ted Karkus
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Ted
Karkus
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Chairman and Chief Executive Officer
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POWER
OF ATTORNEY
KNOW
BY ALL MEN BY THESE PRESENTS that each person whose signature appears below hereby constitutes and appoints Ted Karkus and Robert
V. Cuddihy, Jr., and each of them acting singly, as his true and lawful attorney-in-fact and agent with full power of substitution
and resubstitution, to act, without the other, for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments (including post-effective amendments) to this Registration Statement, including any subsequent registration
statement for the same offering that may be filed under Rule 462(b), and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing requisite and necessary 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, their substitute 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.
/s/
Ted Karkus
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Chairman
and Chief Executive Officer
(Principal
Executive Officer)
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April
26, 2017
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Ted Karkus
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/s/ Robert V.
Cuddihy, Jr.
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Chief Financial Officer
(Principal Financial and Accounting Officer)
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April 26, 2017
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Robert V. Cuddihy,
Jr.
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/s/ Jason Barr
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Director
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April 26, 2017
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Jason Barr
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/s/ Mark Burnett
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Director
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April 26, 2017
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Mark Burnett
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/s/ Louis Gleckel
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Director
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April 26, 2017
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Louis Gleckel
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/s/ Mark Leventhal
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Director
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April 26, 2017
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Mark Leventhal
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/s/ James McCubbin
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Director
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April 26, 2017
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James McCubbin
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INDEX
TO EXHIBITS
Exhibit No.
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Description
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4.1
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Articles of Conversion, as filed with the Secretary
of State of the State of Nevada on June 18, 2015 (incorporated by reference to Exhibit 3.1 of Form 8-K filed with the SEC
on June 19, 2015)
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4.2
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Certificate of Conversion, as filed with the
Secretary of State of the State of Delaware on June 18, 2015 (incorporated by reference to Exhibit 3.2 of Form 8-K filed with
the SEC on June 19, 2015)
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4.3
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Certificate of Incorporation, as filed with
the Secretary of State of the State of Delaware on June 18, 2015 (incorporated by reference to Exhibit 3.3 of Form 8-K filed
with the SEC on June 19, 2015)
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4.4
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Bylaws, effective June 18, 2015 (incorporated
by reference to Exhibit 3.4 of Form 8-K filed with the SEC on June 19, 2015)
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4.1
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Investment Agreement by and between the Company
and Dutchess, dated as of July 30, 2015 (incorporated by reference to Exhibit 4.1 of the registration statement on Form S-3
filed on August 5, 2015)
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4.2
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Registration Rights Agreement by and between
the Company and Dutchess, dated as of July 30, 2015 (incorporated by reference to Exhibit 4.2 of the registration statement
on Form S-3 filed on August 5, 2015)
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5.1
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Opinion of Reed Smith LLP
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23.1
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Consent of EisnerAmper LLP
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23.2
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Consent of Reed Smith LLP (included in Exhibit
5.1)
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24.1
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Power of Attorney (included on signature page
hereto)
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99.1
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Amended
and Restated 2010 Equity Compensation Plan (incorporated by reference to Exhibit A to Schedule 14A filed with the SEC on April
18, 2016)
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