Securities Registration: Employee Benefit Plan (s-8)
December 23 2019 - 4:08PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on December 23, 2019
Registration
No. 333-_____________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
Registration
Statement under The Securities Act of 1933
VERB
TECHNOLOGY COMPANY, INC.
(Exact
name of registrant as specified in its charter)
Nevada
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90-1118043
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(State
or other jurisdiction
of
incorporation)
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|
(I.R.S.
Employer
Identification
No.)
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2210
Newport Boulevard, Suite 200
Newport
Beach, California 92663
(Address
of Principal Executive Offices including Zip Code)
VERB
TECHNOLOGY COMPANY, INC.
2019
OMNIBUS INCENTIVE PLAN
(Full
title of the plan)
Rory
J. Cutaia
Chairman
of the Board, Chief Executive Officer, President, and Secretary
2210
Newport Boulevard, Suite 200
Newport
Beach, California 92663
(Name
and address of agent for service)
(855)
250-2300
(Telephone
Number, including area code, of agent for service)
With
copies to:
Randolf
W. Katz
Baker
& Hostetler LLP
600
Anton Boulevard, Suite 900
Costa
Mesa, California 92626
(714)
966-8807
Alissa
K. Lugo
Baker
& Hostetler LLP
200
S. Orange Avenue, Suite 2300
Orlando,
Florida 32801
(407)
649-4000
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 the 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 [ ]
|
Accelerated
filer [ ]
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Non-accelerated
filer [X]
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Smaller
reporting company [X]
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Emerging
growth company [ ]
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If
an emerging growth company, indicate by check mark, if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
[ ]
CALCULATION
OF REGISTRATION FEE
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 (3)
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|
Common
Stock, $0.0001 par value
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8,000,000
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$
|
1.49
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$
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11,920,000
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$
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1,547.22
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(1)
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Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), the amount of securities registered
under this Registration Statement on Form S-8 (this “Registration Statement”) shall include an indeterminate number
of shares of common stock, $0.0001 par value (the “Common Stock”), that may become issuable as a result of any
stock split, stock dividend, reclassification, recapitalization, “spin-off,” or other similar transaction pursuant
to the anti-dilution provisions of the Verb Technology Company, Inc. 2019 Omnibus Incentive Plan.
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(2)
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Estimated
solely for the purpose of calculating the registration fee pursuant to the provisions of Rule 457(c) and (h) promulgated under
the Securities Act. The maximum offering price per share is based on the average of the high and low prices of the Common
Stock as reported on The Nasdaq Capital Market on December 18, 2019.
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(3)
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Estimated
solely for the purpose of calculating the registration fee pursuant to Rule 457(o) of the Securities Act.
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
documents containing the information specified in Part I, Items 1 and 2, of Form S-8 will be delivered to the participants of
the 2019 Omnibus Incentive Plan (the “Plan”) of Verb Technology Company, Inc. (the “Company,” the “Registrant,”
“we,” “our,” or “us”), in accordance with this Registration Statement on Form S-8 (this “Registration
Statement”) and Rule 428 of the Securities Act. Consistent with the instructions of Part I of Form S-8, such documents will
not be filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated
by reference pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus as required
by Section 10(a) of the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3.
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Incorporation
of Documents by Reference.
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We
are subject to the informational and reporting requirements of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and in accordance therewith file reports, proxy statements, and other information
with the Commission. We incorporate by reference into this Registration Statement the documents listed below:
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(a)
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our
Annual Report on Form 10-K for the year ended December 31, 2018, filed with the Commission on February 7, 2019;
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(b)
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our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2019, filed with the Commission on May 15, 2019;
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(c)
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our
Quarterly Report on Form 10-Q for the quarter ended June 30, 2019, filed with the Commission on August 14, 2019;
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(d)
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our
Quarterly Report on Form 10-Q for the quarter ended September 30, 2019, filed with the Commission on November 14, 2019;
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(e)
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our
Current Reports on Form 8-K filed with the Commission on February 4, 2019, February 5, 2019, February 21, 2019, April 5, 2019,
April 12, 2019, April 17, 2019, and November 1, 2019;
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(f)
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the
description of our Common Stock contained in our Registration Statement on Form 8-A, dated March 12, 2019, including any amendment
or report filed for the purpose of updating such description;
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(g)
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all
documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, subsequent
to the effective date of this Registration Statement, but prior to the filing of a post-effective amendment to this Registration
Statement indicating that all securities offered have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the respective dates
of filing of such documents.
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Notwithstanding
the foregoing, unless specifically stated to the contrary, none of the information disclosed by the Company under Items 2.02 or
7.01 of any Current Report on Form 8-K that the Company may from time to time furnish to the Commission will be incorporated by
reference into, or otherwise included in, 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 subsequently filed document, which also is or is deemed to
be incorporated by reference herein, modifies or supersedes such 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
4.
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Description
of Securities.
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Not
applicable.
Item
5.
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Interests
of Named Experts and Counsel.
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Not
applicable.
Item
6.
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Indemnification
of Directors and Officers.
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We
are a Nevada corporation and generally governed by the Nevada Private Corporations Code, Title 78 of the Nevada Revised Statutes
(“NRS”).
Section
78.138 of the NRS provides that, unless the corporation’s articles of incorporation provide otherwise, a director or officer
will not be individually liable unless it is proven that (i) the director’s or officer’s acts or omissions constituted
a breach of his or her fiduciary duties, and (ii) such breach involved intentional misconduct, fraud, or a knowing violation of
the law.
Section
78.7502 of the NRS permits a company to indemnify its directors and officers against expenses, judgments, fines, and amounts paid
in settlement actually and reasonably incurred in connection with a threatened, pending, or completed action, suit, or proceeding,
if the officer or director (i) is not liable pursuant to Section 78.138 of the NRS, or (ii) acted in good faith and in a manner
the officer or director reasonably believed to be in or not opposed to the best interests of the corporation and, if a criminal
action or proceeding had no reasonable cause to believe the conduct of the officer or director was unlawful. Section 78.7502 of
the NRS also precludes indemnification by the corporation if the officer or director has been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals, to be liable to the corporation or for amounts paid in settlement to the corporation,
unless and only to the extent that the court determines that in view of all the circumstances, the person is fairly and reasonably
entitled to indemnity for such expenses and requires a corporation to indemnify its officers and directors if they have been successful
on the merits or otherwise in defense of any claim, issue, or matter resulting from their service as a director or officer.
Section
78.751 of the NRS permits a Nevada corporation to indemnify its officers and directors against expenses incurred by them in defending
a civil or criminal action, suit, or proceeding as they are incurred and in advance of final disposition thereof, upon determination
by the stockholders, the disinterested board members, or by independent legal counsel. Section 78.751 of the NRS provides that
the articles of incorporation, the bylaws, or an agreement may require a corporation to advance expenses as incurred upon receipt
of an undertaking by or on behalf of the officer or director to repay the amount if it is ultimately determined by a court of
competent jurisdiction that such officer or director is not entitled to be indemnified by the corporation if so provided in the
corporation’s articles of incorporation, bylaws, or other agreement. Section 78.751 of the NRS further permits the corporation
to grant its directors and officers additional rights of indemnification under its articles of incorporation, bylaws, or other
agreement.
Section
78.752 of the NRS provides that a Nevada corporation may purchase and maintain insurance or make other financial arrangements
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 company, partnership, joint venture, trust, or
other enterprise, for any liability asserted against him and liability and expenses incurred by him in his capacity as a director,
officer, employee, or agent, or arising out of his status as such, whether or not the corporation has the authority to indemnify
him against such liability and expenses. We have obtained insurance policies insuring our directors and officers against certain
liabilities they may incur in their capacity as directors and officers. Under such policies, the insurer, on our behalf, may also
pay amounts for which we have granted indemnification to the directors or officers.
The
foregoing discussion of indemnification merely summarizes certain aspects of indemnification provisions and is limited by reference
to the above discussed sections of the NRS.
In
addition, our Articles of Incorporation and our Amended and Restated Bylaws (the “Bylaws”) generally eliminates director
and officer liability or any act or failure to act in his or her capacity as a director or officer. Our Bylaws provide that we
must advance expenses incurred, or reasonably expected to be incurred, within three (3) months of any proceeding to which the
indemnitee was or is a party or is otherwise involved by reason of the fact that he or she was serving or acting in a covered
capacity. An indemnitee is entitled to advances, to the fullest extent permitted by applicable law, solely upon the execution
and delivery to us of an undertaking providing that the indemnitee agrees to repay the advance to the extent it is ultimately
determined that he or she was not entitled to be indemnified by us under the provisions of the Bylaws, the Articles of Incorporation,
or an agreement between us and the indemnitee.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers, and controlling
persons pursuant to the foregoing provisions, or otherwise, we have 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 us of expenses incurred or paid by our director, officer, or controlling person
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, we will, unless in the opinion of our 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 Securities Act and will be governed by the final adjudication of such issue.
Item
7.
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Exemption
from Registration Claimed.
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Not
applicable.
Unless
otherwise indicated below as being incorporated by reference to another filing of the Company with the Commission, each of the
following exhibits is filed herewith:
Exhibit
Number
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Description
of Document
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4.1
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Articles of Incorporation as filed with the Secretary of State of the State of Nevada on November 27, 2012, which were filed as Exhibit 3.1 to our Registration Statement on Form S-1 (File No. 333-187782) filed with the Commission on April 8, 2013, and is incorporated herein by reference thereto.
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4.2
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Amended and Restated Bylaws of Verb Technology Company, Inc., which were filed as Exhibit 3.12 to our Current Report on Form 8-K filed with the Commission on November 1, 2019, and are incorporated herein by reference thereto.
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4.3
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Certificate of Change as filed with the Secretary of State of the State of Nevada on October 6, 2014, which was filed as Exhibit 3.3 to our Current Report on Form 8-K filed with the Commission on October 22, 2014, and is incorporated herein by reference thereto.
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4.4
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Articles of Merger as filed with the Secretary of State of the State of Nevada on October 6, 2014, which were filed as Exhibit 3.4 to our Current Report on Form 8-K filed with the Commission on October 22, 2014, and is incorporated herein by reference thereto.
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4.5
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Articles of Merger as filed with the Secretary of State of the State of Nevada on April 4, 2017, which were filed as Exhibit 3.5 to our Current Report on Form 8-K filed with the Commission on April 24, 2017, and is incorporated herein by reference thereto.
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4.6
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Certificate of Correction as filed with the Secretary of State of the State of Nevada on April 17, 2017, which was filed as Exhibit 3.6 to our Current Report on Form 8-K filed with the Commission on April 24, 2017, and is incorporated herein by reference thereto.
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4.7
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Certificate of Change as filed with the Secretary of State of the State of Nevada on February 1, 2019, which was filed as Exhibit 3.7 to our Annual Report on Form 10-K filed with the Commission on February 7, 2019, and is incorporated herein by reference thereto.
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4.8
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Articles of Merger as filed with the Secretary of State of the State of Nevada on January 31, 2019, which were filed as Exhibit 3.8 to our Annual Report on Form 10-K filed with the Commission on February 7, 2019, and is incorporated herein by reference thereto.
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4.9
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Certificate of Correction as filed with the Secretary of State of the State of Nevada on February 22, 2019, which was filed as Exhibit 3.9 to Amendment No. 4 our Registration Statement on Form S-1 (File No. 333-226840) filed with the Commission on March 14, 2019, and is incorporated herein by reference thereto.
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4.10
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Articles of Merger of Sound Concepts, Inc. with and into NF Merger Sub, Inc. as filed with the Utah Division of Corporations and Commercial Code on April 12, 2019, which were filed as Exhibit 3.10 to our Quarterly Report on Form 10-Q filed with the Commission on May 15, 2019, and is incorporated herein by reference thereto.
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4.11
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Statement of Merger of Verb Direct, Inc., a Utah corporation with and into NF Acquisition Company, LLC as filed with the Utah Division of Corporations and Commercial Code on April 12, 2019, which was filed as Exhibit 3.11 to our Quarterly Report on Form 10-Q filed with the Commission on May 15, 2019, and is incorporated herein by reference thereto.
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4.12
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Certificate of Designation of Rights, Preferences, and Restrictions of Series A Convertible Preferred Stock as filed with the Secretary of State of the State of Nevada on August 12, 2019, which was filed as Exhibit 3.12 to our Quarterly Report on Form 10-Q filed with the Commission on August 14, 2019, and is incorporated herein by reference thereto.
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4.13
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Verb Technology Company, Inc. 2019 Omnibus Incentive Plan (filed herewith).
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5.1
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Legal Opinion of Baker & Hostetler LLP, counsel to the Company (filed herewith).
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23.1
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Consent of Weinberg & Company, P.A., Independent Registered Public Accounting Firm (filed herewith).
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23.2
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Consent of Weinberg & Company, P.A., Independent Registered Public Accounting Firm (filed herewith).
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23.3
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Consent of Baker & Hostetler LLP, counsel to the Company (contained in Exhibit 5.1).
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24.1
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Power of Attorney (contained on signature page hereto).
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The
undersigned Registrant hereby undertakes:
(a)(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i)
To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in the volume and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration Statement;
Provided,
however, that: paragraphs (a)(1)(i) and (a)(1)(ii) of this section do 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 Commission by the Registrant
pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement;
and
(2)
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.
(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 Securities Act, each filing
of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated
by reference in the Registration Statement shall be deemed to be new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act 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 Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer, or controlling person of the Registrant in the successful defense of any such 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 Securities
Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities 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 Newport Beach, State of California, on the 23rd day of December, 2019.
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VERB
TECHNOLOGY COMPANY, INC.
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By:
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/s/
Rory J. Cutaia
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Rory
J. Cutaia
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Chairman
of the Board, Chief Executive Officer, President, and Secretary
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SIGNATURES
AND POWER OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Rory J. Cutaia, as
his true and lawful attorney-in-fact and agent with full power of substitution, for him and in his name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to
sign any registration statement for the same offering covered by this Registration Statement that is to be effective on filing
pursuant to Rule 462(b) promulgated under the Securities Act and all post-effective amendments thereto, and to file the same,
with all exhibits thereto and all documents in connection therewith, with the 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 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, or his or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act, this Registration Statement has been signed 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/
Rory J. Cutaia
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Chairman
of the Board,
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December
23, 2019
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Rory
J. Cutaia
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Chief
Executive Officer, President, and Secretary (Principal Executive Officer)
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/s/
Jeffrey R. Clayborne
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Chief
Financial Officer
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December
23, 2019
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Jeffrey
R. Clayborne
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(Principal
Financial and Accounting Officer)
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/s/
James P. Geiskopf
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Lead
Director
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December
23, 2019
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James
P. Geiskopf
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/s/
Phillip J. Bond
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Director
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December
23, 2019
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Phillip
J. Bond
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/s/
Kenneth S. Cragun
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Director
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December
23, 2019
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Kenneth
S. Cragun
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/s/
Judith Hammerschmidt
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Director
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December
23, 2019
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Judith
Hammerschmidt
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/s/
Nancy Heinen
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Director
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December
23, 2019
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Nancy
Heinen
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