Securities Registration: Employee Benefit Plan (s-8)
April 01 2022 - 4:38PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on April
1, 2022
Registration
No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE MARYGOLD
COMPANIES, INC.
(Exact name of registrant as specified in its charter)
Nevada |
|
90-1133909 |
(State
or other Jurisdiction
of Incorporation or Organization) |
|
(IRS
Employer Identification No.) |
|
|
|
120
Calle Iglesia, Unit B, San Clemente, CA |
|
92672 |
(Address
of Principal Executive Offices) |
|
(zip
code) |
2021
OMNIBUS EQUITY INCENTIVE PLAN
(Full
title of the plans)
Nicholas
Gerber
Chief Executive Officer
The Marygold Companies, Inc.
120 Calle Iglesia, Unit B,
San Clemente, CA 92672
(949) 429-5370
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
With a copy
to:
Peter
Gennuso, Esq.
McCarter & English, LLP
825 Eighth Avenue, Floor 31
New York, NY 10019
Tel: (212) 609-6862
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 |
o |
Accelerated filer |
o |
Non-accelerated filer |
x |
Smaller reporting company |
x |
Emerging growth company |
o |
|
|
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. o
PART
I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents
containing the information specified in this Part I of Form S-8 (plan information and registration information and employee plan
annual information) will be sent or given to employees as specified by the Securities and Exchange Commission (the “Commission”)
pursuant to Rule 428(b)(1) of the Securities Act. Such documents are not required to be and are not filed with the Commission
either as part of this registration statement on Form S-8 (this “Registration Statement”) or as prospectuses
or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section
10(a) of the Securities Act. The Registrant will provide a written statement to participants advising them of the availability
without charge, upon written or oral request, of the documents incorporated by reference in Item 3 of Part II hereof and including
the statement in the preceding sentence. The written statement to all participants will indicate the availability without charge,
upon written or oral request, of other documents required to be delivered pursuant to Rule 428(b), and will include the address
and telephone number to which the request is to be directed.
PART
II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents
by Reference. |
The
following documents filed with the Commission by The Marygold Companies, Inc. (the “Company”), pursuant to the Securities
Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”) are hereby incorporated by reference
in this Registration Statement:
(1) The Registrant’s
Annual Report on Form 10-K for the year ended June 30, 2021, filed with the Commission on September 22, 2021;
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter ended December 31, 2021, filed with the Commission on February 14, 2022 and the Registrant's Quarterly Report on Form 10-Q for the quarter ended September 30, 2021, filed with the Commission on November 15, 2021;
(3) The Company’s
Registration on Form 8-A/A (File No. N/A) filed with the SEC on March 8, 2022; and
(4) The description
of the Company’s common stock, par value $0.001 per share (the “Common Stock”), which is contained in the Company’s
Registration Statement on Form S-1 (File No. 333-261522), originally filed with the SEC on December 7, 2021, including any amendment,
prospectus or report filed for the purpose of updating such description.
All
documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act and, to the
extent specifically designated therein, Current Reports on Form 8-K filed by the Registrant with the Commission that are identified
in such forms as being incorporated into this Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement indicating that all of the securities offered hereby 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 part hereof
from the date of filing such documents.
Any
statement contained in a document incorporated or deemed to be incorporated by reference in this Registration Statement shall
be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in
this Registration Statement (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 statement contained in this Registration Statement shall be deemed
to be modified or superseded to the extent that a statement contained in a subsequently filed document that is or is deemed to
be incorporated by reference in this Registration Statement modifies or supersedes such prior 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. |
Not
applicable
| Item 6. | Indemnification of Directors
and Officers. |
Under
the Articles of Incorporation and Bylaws of the Company, we may indemnify an officer or director who is made a party to any proceeding,
including a lawsuit, because of his position, if he acted in good faith and in a manner, he reasonably believed to be in our best
interest. We may advance expenses incurred in defending a proceeding. To the extent that the officer or director is successful
on the merits in a proceeding as to which he is to be indemnified, we must indemnify him against all expenses incurred, including
attorney’s fees. With respect to a derivative action, indemnity may be made only for expenses actually and reasonably incurred
in defending the proceeding, and if the officer or director is judged liable, only by a court order. The indemnification is intended
to be to the fullest extent permitted by the laws of the State of Nevada.
The
Registrant also maintains general liability insurance that covers certain liabilities of its directors and officers arising out
of claims based on acts or omissions in their capacities as directors or officers.
| Item 7. | Exemption from Registration
Claimed. |
Not
applicable.
The
following exhibits are filed as part of this Registration Statement:
Exhibit
Number |
3.1 |
Amended Articles of Incorporation of Concierge Technologies, Inc. (incorporated by reference to Exhibit A to the Definitive Proxy Materials on Schedule 14A filed on February 28, 2017). |
3.2 |
Amended Bylaws of Concierge Technologies, Inc. (incorporated by reference to Exhibit B to the Definitive Proxy Materials on Schedule 14A filed on February 28, 2017). |
3.3 |
Certificate of Designation (Series of Preferred Stock) (incorporated by reference to Exhibit 3.1 to the Company’s Annual Report on Form 10-K filed on October 8, 2010). |
3.4 |
Amendment to Certificate of Designation filed with the Secretary of State of the State of Nevada on January 31, 2013 (incorporated by reference to Exhibit 3.3 of the Company’s Quarterly Report on Form 10-Q filed on November 15, 2021). |
3.5 |
Amendment to Certificate of Designation filed with the Secretary of State of the State of Nevada on January 5, 2015 (incorporated by reference to Exhibit 3.4 of the Company’s Quarterly Report on Form 10-Q filed on November 15, 2021). |
5.1* |
Opinion of McCarter & English, LLP. |
23.1* |
Consent of BPM LLP, independent registered public accounting firm. |
23.2* |
Consent of McCarter & English, LLP (included in the opinion filed as Exhibit 5.1). |
24.1* |
Power of Attorney (see signature page to the registration statement). |
99.1* |
2021 Omnibus Equity Incentive Plan |
*Filed herewith.
(a) The 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.
(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% 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) herein 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 (15 U.S.C. 78m or 78o(d)) 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.
(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 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 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
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 San Clemente, State of California on the 1st day of April,
2022.
|
THE MARYGOLD COMPANIES, INC. |
|
|
|
|
By: |
/s/ Nicholas Gerber |
|
|
Nicholas D. Gerber |
|
|
Chief Executive Officer |
POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Nicholas D. Gerber his
true and lawful attorney-in-fact and agent, each acting alone, with full power of substitution and resubstitution, for him and
in his name, place and stead, in any and all capacities, to sign any and all amendments (including any post-effective amendments)
to the 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 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,
or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following person
in the capacities indicated and on the date indicated below.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Nicholas D. Gerber |
|
Chief
Executive Officer, President and Director |
|
April
1, 2022 |
Nicholas
D. Gerber |
|
(Principal
Executive Officer) |
|
|
|
|
|
|
|
/s/
Stuart Crumbaugh |
|
Chief
Financial Officer |
|
April
1, 2022 |
Stuart
Crumbaugh |
|
(Principal
Financial Officer and Principal Accounting Officer) |
|
|
/s/
David W. Neibert |
|
Chief
Operating Officer, Secretary and Director |
|
April
1, 2022 |
David
W. Neibert |
|
|
|
|
|
|
|
|
|
/s/
Scott Schoenberger |
|
Director |
|
April
1, 2022 |
Scott
Schoenberger |
|
|
|
|
|
|
|
|
|
/s/
Matt Gonzalez |
|
Director |
|
April
1, 2022 |
Matt
Gonzalez |
|
|
|
|
|
|
|
|
|
/s/
Derek Mullins |
|
Director |
|
April
1, 2022 |
Derek
Mullins |
|
|
|
|
|
|
|
|
|
/s/
Kathryn D. Rooney |
|
Director |
|
April
1, 2022 |
Kathryn
D. Rooney |
|
|
|
|
|
|
|
|
|
/s/
Erin Grogan |
|
Director |
|
April
1, 2022 |
Erin
Grogan |
|
|
|
|
|
|
|
|
|
/s/
Kelly J. Anderson |
|
Director |
|
April
1, 2022 |
Kelly
J. Anderson |
|
|
|
|
|
|
|
|
|
/s/
Joya Delgado Harris |
|
Director |
|
April
1, 2022 |
Joya
Delgado Harris |
|
|
|
|
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