Securities Registration: Employee Benefit Plan (s-8)
June 28 2018 - 4:49PM
Edgar (US Regulatory)
As filed with the Securities and
Exchange Commission on June 28, 2018
Registration
Statement No.
333−
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
Liberated Syndication Inc.
(Exact
name of registrant as specified in its charter)
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Nevada
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47-5224851
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(State
or other jurisdiction of
incorporation or
organization)
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(I.R.S.
Employer
Identification
No.)
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5001 Baum Blvd. Suite 770
Pittsburgh, Pennsylvania
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15213
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(Address
of Principal Executive Offices)
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(Zip
Code)
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2018 Omnibus Equity Incentive Plan
(Full title
of the plan)
Christopher
J. Spencer
5001
Baum Blvd. Suite 770
Pittsburgh, Pennsylvania 15213
(Name
and address of agent for service)
(412) 621-0902
(Telephone
number, including area code, of agent for service)
With a copy to:
Mitchell
S. Nussbaum, Esq.
Norwood
Beveridge, Esq.
Loeb
& Loeb LLP
345
Park Avenue
New
York, NY 10154
(212)
407-4000 (telephone number)
(212)
407-4990 (facsimile number)
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.
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Large
accelerated filer
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☐
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Accelerated
filer
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☐
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Non-accelerated
filer
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☐
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(Do not
check if a small reporting company.)
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Smaller
reporting company
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☒
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Emerging
growth company
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☒
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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
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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 (2)
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Common Stock,
$0.001 par value per share
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3,000,000 Shares
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$
1.69
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$
5,070,000
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$
631.21
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(1)
Also registered
hereby are such additional and indeterminate number of shares of
Common Stock as may be issuable under the 2018 Omnibus Equity
Incentive Plan by reason of any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares, or
other similar change affecting the outstanding Common
Stock.
(2)
Estimated solely
for the purpose of calculating the registration fee which was
computed in accordance with Rule 457(c) and Rule 457(h)(1) under
the Securities Act of 1933, as amended (the “Securities
Act”), on the basis of the average of the high and low sales
prices per share of the stock as reported on the OTCQB on June 25,
2018.
This
Registration Statement will become effective upon filing in
accordance with Rule 462(a) under the Securities Act.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
documents containing the information required by Part I of Form S-8
will be sent or given to participants as specified by Rule
428(b)(1) under the Securities Act of 1933, as amended (the
“Securities Act”). In accordance with Rule 428(b)(1)
and the requirements of Part I of Form S-8, these documents are not
required to be filed with the Securities and Exchange Commission
(the “Commission” or “SEC”) either as part
of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act. These
documents and the documents incorporated by reference in this
Registration Statement 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.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by
Reference.
The
following documents filed with the SEC by us pursuant to the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), are incorporated by reference in this Registration
Statement, other than information furnished pursuant to Item 2.02
or Item 7.01 of Form 8-K:
1)
Our Annual Report
on Form 10-K for the year ended December 31, 2017, filed with the
SEC on March 26, 2018;
2)
Our Quarterly
Report on Form 10-Q for the quarter ended March 31, 2018 filed with
the SEC on May 15, 2017;
3)
Our Current Reports
on Form 8-K as filed with the SEC on January 3, 2018 (as amended by
a Form 8-K/A as filed with the SEC on March 21, 2018);
and
4)
The description of
our Common Stock included under the caption “Description of
Capital Stock” in the 424B3 Prospectus (File No. 333-209599)
filed with the SEC on July 27, 2016, which description has been
incorporated by reference into Item 1 of our Registration Statement
on Form 8-A, filed pursuant to Section 12 of the Exchange Act, on
April 28, 2017 (File No. 000-55779), and any amendment or report
filed for the purpose of updating such description.
In
addition, all documents filed by us pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, other than information
furnished pursuant to Item 2.02 or Item 7.01 of Form 8-K,
subsequent to the date of this Registration Statement and prior to
the filing of a post-effective amendment to this Registration
Statement which indicates that all securities offered 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. Any statement in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for the purposes of this Registration
Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
We will
provide to you, upon request, a copy of each of our filings at no
cost. Please make your request by writing or telephoning us at the
following address or telephone number:
Liberated
Syndication Inc.
5001
Baum Blvd. Suite 770
Pittsburgh,
Pennsylvania 15213
(412)
621-0902
You
should rely only on the information incorporated by reference or
provided in this prospectus or any supplement. We have not
authorized anyone else to provide you with different information.
You should not assume that the information in this prospectus or
any supplement is accurate as of any date other than the date on
the front of those 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.
Section
78.7502(1) of the Nevada Revised Statutes ("NRS") authorizes a
Nevada corporation to indemnify any director, officer, employee or
corporate 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, whether civil, criminal, administrative or
investigative, except an action by or in the right of the
corporation" due to his or her corporate role. Section 78.7502(1)
extends this protection "against expenses, including attorneys'
fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with any action, suit or
proceeding if he or she acted in good faith and in a manner that he
or she 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 or her
conduct was unlawful."
Section
78.7502(2) of the NRS also authorizes indemnification of the
reasonable defense or settlement expenses of a corporate director,
officer, employee or agent who is sued, or is threatened with a
suit, by or in the right of the corporation. The party must have
been acting in good faith and with the reasonable belief that his
or her actions were not opposed to the corporation's best
interests. Unless the court rules that the party is reasonably
entitled to indemnification, the party seeking indemnification must
not have been found liable to the corporation.
To the
extent that a corporate director, officer, employee or agent is
successful on the merits or otherwise in defending any action or
proceeding referred to in Section 78.7502(1) or 78.7502(2), Section
78.7502(3) of the NRS requires that he or she be indemnified
"against expenses, including attorneys' fees, actually and
reasonably incurred by him in connection with the
defense."
Section
78.751(1) of the NRS limits indemnification under Sections
78.7502(1) and 78.7502(2) to situations in which either (1) the
stockholders, (2) the majority of a disinterested quorum of
directors, or (3) independent legal counsel determine that
indemnification is proper under the circumstances.
Pursuant to Section
78.751(2) of the NRS, the corporation may advance an officer's or
director's expenses incurred in defending any action or proceeding
upon receipt of an undertaking. Section 78.751(3)(a) provides that
the rights to indemnification and advancement of expenses shall not
be deemed exclusive of any other rights under any bylaw, agreement,
stockholder vote or vote of disinterested directors. Section
78.751(3)(b) extends the rights to indemnification and advancement
of expenses to former directors, officers, employees and agents, as
well as their heirs, executors, and administrators.
Regardless of
whether a director, officer, employee or agent has the right to
indemnity, Section 78.752 allows the corporation to purchase and
maintain insurance on his or her behalf against liability resulting
from his or her corporate role.
Our
Articles of Incorporation provide for the indemnification of
directors to the fullest extent permissible under Nevada
law.
Our
Bylaws provide for the indemnification of officers, directors and
other agents acting on our behalf to an extent consistent with
applicable provisions of the NRS.
Additionally, in
the future, we may purchase and maintain insurance on behalf of
Libsyn and any person who is or was a director or officer against
any loss arising from any claim asserted against him or her and
incurred by him or her in that capacity, subject to certain
exclusions and limits of the amount of coverage we ultimately
obtain. Neither our Bylaws nor our Articles of Incorporation
include any specific indemnification provisions for our officers or
directors against liability under the Securities Act. Additionally,
insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable.
Item
7. Exemption From Registration
Claimed.
Not
applicable.
Item
8. Exhibits.
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Exhibit No.
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Description
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Articles
of Incorporation, incorporated by reference to exhibit of the same
number of the Registrant’s Registration Statement on Form S-1
filed with the Securities and Exchange Commission on February 19,
2016
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By-Laws,
incorporated by reference to exhibit of the same number of the
Registrant’s Registration Statement on Form S-1 filed with
the Securities and Exchange Commission on February 19,
2016
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Opinion
of Loeb & Loeb LLP
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2018
Omnibus Equity Incentive Plan
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Consent
of Gregory & Associates, LLC
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Consent
of Loeb & Loeb LLP (included in Exhibit 5.1)
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24.1
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Power
of Attorney (included on signature pages)
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Item
9. Undertakings.
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 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 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;
ii.
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
(1)(i) and (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 15(d) of the
Exchange Act that are incorporated by reference in the Registration
Statement.
(2)
That, for the
purpose of determining any liability under the Securities 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.
(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.
(4)
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 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 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.
(5)
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 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 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 the City of Pittsburgh,
Commonwealth of Pennsylvania, on this 28th day of June,
2018.
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LIBERATED
SYNDICATION INC.
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By:
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/s/
Christopher J.
Spencer
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Name:
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Christopher J.
Spencer
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Title:
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Chairman of the
Board of Directors and Chief Executive
Officer
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KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of Christopher J. Spencer and
John L. Busshaus his true and lawful attorney-in-fact and agent,
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
file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission
granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done, as fully to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent 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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Signature
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Title
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Date
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/s/
Christopher J. Spencer
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Chairman
and Chief Executive Officer
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June
28, 2018
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Christopher
J. Spencer
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(Principal
Executive Officer)
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/s/
John Busshaus
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Chief
Financial Officer
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June
28, 2018
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John L.
Busshaus
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(Principal
Financial and Accounting Officer)
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/s/
Denis Yevstifeyev
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Director
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June
28, 2018
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Denis
Yevstifeyev
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/s/
Douglas Polinsky
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Director
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June
28, 2018
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Douglas
Polinsky
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/s/ J.
Gregory Smith
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Director
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June
28, 2018
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J.
Gregory Smith
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