Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
RAFAEL HOLDINGS, INC.
(Exact name of registrant as specified in its
charter)
Delaware |
|
82-2296593 |
(State of Incorporation) |
|
(I.R.S. Employer Identification No.) |
520 Broad Street
Newark, New Jersey 07102
(212) 658-1450
(Address of Principal Executive Offices, Including
Zip Code
and Telephone Number)
Rafael Holdings, Inc. 2021 Equity Incentive
Plan
(Full Title of the Plan)
David Polinsky
Chief Financial Officer
Rafael Holdings, Inc.
520 Broad Street
Newark, NJ 07102
(212) 658-1450
(Name, Address, including Zip Code, and Telephone
Number,
Including Area Code, of Agent for Service)
Copies to:
Dov T. Schwell, Esq.
Schwell Wimpfheimer & Associates LLP
37 West 39th Street, Suite 505
New York, NY 10018
(646) 328-0795
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer or a small reporting company. See definitions of “large accelerated filer,”
“accelerated filer” and “small reporting company” in Rule 12b-2 of the Exchange Act.
|
|
|
|
|
|
|
Large accelerated filer |
¨ |
Accelerated filer |
¨ |
|
|
Non-accelerated
filer |
þ |
Smaller reporting company |
þ |
|
|
|
|
|
|
|
|
Emerging growth company |
¨ |
|
|
|
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. ¨
Explanatory Note
This Registration Statement is being filed by Rafael
Holdings, Inc. (the “Registrant”) to register 981,806 shares of its Class B common stock, $0.01 par value per share (the “Class
B Common Stock”), of which 696,770 shares of Class B Common stock were added to the Rafael Holdings, Inc. 2021 Equity Incentive
Plan, as amended and restated (the “SOP”) and 285,036 shares were previously issued as restricted shares pursuant to awards
that were forfeited prior to vesting and will be issuable to eligible individuals under the Registrant’s SOP, for which a registration
statement of the Registrant on Form S-8 (File No. 333-262243) is effective.
PART I
SECTION 10(a) PROSPECTUS
The documents containing the
information specified in Part I of Form S-8 will be sent or given to participants in the SOP as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the “Securities Act”). Such documents need not be filed with the Commission, 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 the registration statement pursuant to Item 3 of Part II of this Form, taken
together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. See Securities Act Rule 428(a)(1).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents filed with the Securities
and Exchange Commission (the “Commission”) by the Registrant, pursuant to the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), are incorporated by reference in this Registration Statement:
|
(a) |
The Registrant’s Annual Report on Form 10-K for the year ended July 31, 2022 filed with the Commission on October 31, 2022; |
|
|
|
|
(b) |
The Registrant’s Quarterly Reports on Form 10-Q for the quarters ended October 31, 2022, January 31, 2023 and April 30, 2023 filed with the Commission on December 13, 2022, March 14, 2023 and June 13, 2023, respectively; |
|
|
|
|
(c) |
The Registrant’s Current Reports on Form 8-K filed
with the Commission on August
1, 2022, August 23,
2022, August 26,
2022, October 31,
2022, November 15,
2022, and December 13, 2022, January 5, 2023, January 26, 2023, February 2, 2023, March 14, 2023, April 4, 2023, June 5, 2023 as
amended August 2, 2023, June 13, 2023, August 2, 2023 and August 9, 2023; and |
|
|
|
|
(d) |
The Registrant’s definitive proxy statement on Schedule 14A filed with the SEC on November 28, 2022; and |
|
|
|
|
(e) |
Description of our Class B common stock set forth under Item 11 in Post-Effective Amendment No. 3 to the Registrant’s Registration Statement on Form 10, filed with the SEC on March 26, 2018, and contained in] Exhibit 4.2 to our Annual Report on 10-K filed with SEC on October 31, 2022, including any amendment or report filed for the purpose of updating such information. |
All documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment 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 herein and to be a part hereof from the date of filing of such documents. Any statement contained 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 also is incorporated or 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. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and
Officers.
The Registrant’s Certificate
of Incorporation provides that, no director shall be personally liable to the Corporation or any of its stockholders for monetary damages
for any breach of fiduciary duty as a director, except for liability (i) for breach of the director’s duty of loyalty to the Corporation
or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) pursuant to Section 174 of the GCL or (iv) for any transaction from which the director derived an improper personal benefit and
that any alteration, amendment or repeal of this section by the stockholders of the Corporation shall not adversely affect any right
or protection of a director of the Corporation existing at the time of such alteration, amendment or repeal with respect to acts or omissions
occurring prior to such alteration, amendment or repeal.
The Registrant’s By-Laws
provide that the Registrant shall indemnify any person 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 investi-gative (other than an action by or in the right
of the Corporation) by reason of the fact that he is or was a director or officer of the Corporation, or is or was a director or officer
of the Corporation serving at the request of the Corporation as a director or officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys’ fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he 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.
The By-laws further
provide that the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is
or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of 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 was
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 the Court of Chancery or such other court shall deem
proper.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Item 9. Undertakings.
| (a) | The undersigned Registrant hereby undertakes: |
| | |
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: |
| | |
| (i) | To include any prospectus required by Section 10(a)(3) of the 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 the 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 Securities and Exchange 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; and |
| | |
| (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) will 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 Securities Exchange Commission by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act of 1934 that are incorporated by reference in the Registration Statement. |
| (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 of 1933, each
filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the 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. |
| | |
| (c) | 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 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. 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, as amended, 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 Form S-8 Registration Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Newark, State of New Jersey, on August 29, 2023.
|
RAFAEL HOLDINGS, INC. |
|
|
|
|
By: |
/s/ David Polinsky |
|
|
David Polinsky |
|
|
Chief Financial Officer |
The undersigned directors and officers hereby
constitute and appoint Joyce Mason, with full power to act and with full power of substitution and resubstitution, our true and lawful
attorney-in-fact with full power to execute in our name in the capacities indicated any and all amendments (including post-effective amendments)
to this Registration Statement and to sign any and all additional registration statements relating to the same offering of securities
as this Form S-8 that are filed pursuant to the requirements of the Securities Act of 1933, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange Commission and hereby ratify and confirm that all such attorneys-in
fact, or either of them, or their substitutes shall lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this Form S-8 Registration Statement has been signed by the following persons in the capacities indicated as
of August 29, 2023.
Signature |
|
Titles |
|
|
|
/s/ Howard S. Jonas |
|
Director, Chairman of the Board and Executive Chairman |
Howard S. Jonas |
|
|
|
|
|
/s/ William Conkling |
|
Chief Executive Officer |
William Conkling |
|
(Principal Executive Officer) |
|
|
|
/s/ David Polinsky |
|
Chief Financial Officer |
David Polinsky |
|
(Principal Financial Officer and Principal Accounting Officer) |
|
|
|
/s/ Stephen Greenberg |
|
Director |
Stephen Greenberg |
|
|
|
|
|
/s/ Rachel Jonas |
|
Director |
Rachel Jonas |
|
|
|
|
|
/s/
Mark McCamish |
|
Director |
Mark McCamish |
|
|
|
|
|
/s/ Michael J. Weiss |
|
Director |
Michael J. Weiss |
|
|
EXHIBIT INDEX
II-5
Exhibit 5.1
August 29, 2023
Rafael Holdings, Inc.
520 Broad Street
Newark, NJ 07102
| Re: | Rafael Holdings, Inc. — Registration Statement on Form S-8 |
Ladies and Gentlemen:
We are counsel to Rafael Holdings, Inc. (the “Company”),
and as such we have been asked to render the following opinion in connection with the registration statement on Form S-8 (the “Registration
Statement”) to be filed with the Securities and Exchange Commission (the “SEC” or the “Commission”) in connection
with the registration under the Securities Act of 1933, as amended, of an aggregate of 981,806 shares of the Company’s Class B common
stock, par value $.01 (the “Class B Common Stock”) which are reserved for issuance pursuant to the Rafael Holdings, Inc. 2021
Equity Incentive Plan, as amended and restated (the “Plan”).
In connection with the opinions rendered herein,
we have examined the Amended and Restated Certificate of Incorporation of the Company, its Amended and Restated By-Laws, the Plan, and
such other documents and corporate records as we have deemed necessary solely for the purpose of enabling us to render this opinion.
In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic
or digital copies and the authenticity of the originals of such copies. As to certain matters of fact, both expressed and implied, we
have relied upon representations, statements or certificates of officers of the Company.
On the basis of such examination, we are of the
opinion that the shares of Class B Common Stock to be offered pursuant to the Registration Statement, when issued pursuant to the terms
of the Plan and the terms of any grant instrument executed in connection therewith, will be validly issued, fully paid and non-assessable.
The opinion set forth above is subject to the following
exceptions, limitations and qualifications: (i) the effect of bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of creditors; (ii) the effect of general
principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which
any proceeding therefor may be brought; (iii) the unenforceability under certain circumstances under law or court decisions of provisions
providing for the indemnification of, or contribution to, a party with respect to a liability where such indemnification or contribution
is contrary to public policy; and (iv) we express no opinion concerning the enforceability of any waiver of rights or defenses with respect
to stay, extension or usury laws. Our opinion is limited to the General Corporation Law of the State of Delaware and the federal laws
of the United States, and we express no opinion with respect to the laws of any other jurisdiction.
Please note that we are opining only as to the matters
expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon currently existing statutes,
rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources of law or
subsequent legal or factual developments which might affect any matters or opinions set forth herein after the Registration Statement
has been declared effective by the SEC.
We hereby consent to the filing of this opinion
with the Commission as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K
under the Act. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section
7 of the Act or the rules and regulations of the Commission.
|
Very truly yours, |
|
|
|
/s/ Schwell Wimpfheimer and Associates LLP |
|
Schwell Wimpfheimer and Associates LLP
|
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of Rafael Holdings, Inc. of our report dated October 31, 2022, relating to the consolidated financial statements of Rafael
Holdings, Inc. as of July 31, 2022 and 2021 and for the years then ended included in its Annual Report on Form 10-K for the year ended
July 31, 2022.
/s/ CohnReznick LLP
New York, New York
August 28, 2023
Exhibit 107
FEE TABLES FOR
FORM S-8
Calculation of Filing
Fee Tables
Form S-8
(Form Type)
RAFAEL HOLDINGS, INC.
(Exact Name of Registrant
as Specified in its Charter)
Table 1: Newly Registered
Securities
Security Type | |
Security Class Title | |
Fee Calculation Rule | | |
Amount Registered (1) | | |
Proposed Maximum Offering Price Per
Unit | | |
Maximum Aggregate Offering Price | | |
Fee Rate | | |
Amount of Registration Fee | |
Equity | |
Class B Common Stock, par value $.01 per share | |
| 457(h) | | |
| 981,806 | (2) | |
$ | 2.215 | (3) | |
$ | 2,174,700 | (3) | |
| 0.0001102 | | |
$ | 239.65 | |
Total Offering Amounts | |
| | | |
$ | | | |
| | | |
$ | 239.65 | |
Total Fee Offsets | |
| | | |
| | | |
| | | |
| — | |
Net Fee Due | |
| | | |
| | | |
| | | |
$ | 239.65 | |
(1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), the number of shares being
registered shall be adjusted to include such additional indeterminate number of shares as may be issuable pursuant to the anti-dilution
provisions of the Rafael Holdings, Inc. 2021 Equity Incentive Plan, as amended and restated (the “SOP”). In addition, pursuant
to Rule 416(c) under the Securities Act, this registration statement also covers an indeterminate amount of interests to be offered or
sold pursuant to the employee benefit plans described herein. Moreover, any shares subject to options or other outstanding Awards (as
defined in the SOP) under the SOP that are cancelled, forfeited, expired or terminated, which in any such case does not result in the
issuance of shares, shall be again available for issuance pursuant to Awards granted under SOP. |
| |
(2) | Represents 696,770 shares of Class B Common Stock of the
Registrant (“Class B Common Stock”) added for issuance under the SOP and 285,036 shares of Class B Common Stock that had
been previously issued as restricted stock granted under the SOP, but that were forfeited prior to vesting and as such became available
for issuance under the SOP pursuant to its terms. |
| |
(3) | Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) under the Securities Act,
and based upon the average of the high and low reported prices of the shares of the Class B Common Stock on the New York Stock Exchange
on August 28, 2023. |
Rafael (NYSE:RFL)
Historical Stock Chart
From Apr 2024 to May 2024
Rafael (NYSE:RFL)
Historical Stock Chart
From May 2023 to May 2024