As filed with the Securities and Exchange Commission on October
21, 2020
Registration No. 333-249238
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 TO FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
SILVERSUN TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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16-1633636
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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120 Eagle Rock Ave
East Hanover, NJ 07936
(973) 396-1720
(Address, including zip code, and telephone number, including
area code, of registrant’s principal executive offices)
Mark Meller
120 Eagle Rock Ave
East Hanover, NJ 07936
973-396-1720
(Address, including zip code, and telephone number, including
area code, of agent for service)
Copies to:
Joseph M. Lucosky, Esq.
Lawrence Metelitsa, Esq.
Lucosky Brookman LLP
101 Wood Avenue South, 5th Floor
Iselin, NJ 08830
(732) 395-4400
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE
PUBLIC: From time to time after the effective date of this
registration statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. ☐
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. ☑
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective on filing with the Commission pursuant to Rule
462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the
following box. ☐
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer,
or a smaller reporting company, or an emerging growth company. See
the definitions of “large accelerated filer,” “accelerated filer”
and “smaller reporting company” and "emerging growth company" in
Rule 12b-2 of the Exchange Act. (Check one):
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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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Smaller reporting company
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☑
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Emerging growth company
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☐
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The registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933 or until the registration statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a),
may determine.
EXPLANATORY NOTE
SilverSun Technologies, Inc. is filing this Amendment No. 1 to its
Registration Statement on Form S-3 (333-249238) (“Amendment No. 1”)
as an exhibit-only filing solely to file an opinion of counsel as
Exhibit 5.1 and to file a new Power of Attorney as Exhibit 24.1.
This Amendment No. 1 consists only of the facing page, this
explanatory note, Part II of the Registration Statement, the
signature page to the Registration Statement, the exhibit index and
the exhibits being filed with this Amendment No. 1.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and
Distribution
The following is an estimate of the expenses (all of which are to
be paid by the registrant) that we may incur in connection with the
securities being registered hereby.
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SEC registration fee
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$
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6,490
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FINRA filing fee
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*
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Printing expenses
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*
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Legal fees and expenses
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*
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Accounting fees and expenses
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*
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Blue Sky, qualification fees and expenses
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*
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Transfer agent fees and expenses
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*
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Trustee fees and expenses
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*
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Warrant agent fees and expenses
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*
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Miscellaneous
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*
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Total
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$
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*
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*
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These fees are calculated based on the securities offered and the
number of issuances and accordingly cannot be estimated at this
time.
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Item 15. Indemnification of Directors and
Officers
Section 145 of the General Corporation Law of the State of Delaware
provides, in general, that a corporation incorporated under the
laws of the State of Delaware, as we are, may 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 (other
than a derivative action by or in the right of the corporation) by
reason of the fact that such person 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 enterprise, 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 such person 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
such person’s conduct was unlawful. In the case of a derivative
action, a Delaware corporation may indemnify any such person
against expenses (including attorneys’ fees) actually and
reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good
faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the corporation, except that
no indemnification will be made in respect of any claim, issue or
matter as to which such person will have been adjudged to be liable
to the corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or any other court in which such
action was brought determines such person is fairly and reasonably
entitled to indemnity for such expenses.
Our certificate of incorporation and bylaws provide that we will
indemnify our directors, officers, employees and agents to the
extent and in the manner permitted by the provisions of the General
Corporation Law of the State of Delaware, as amended from time to
time, subject to any permissible expansion or limitation of such
indemnification, as may be set forth in any stockholders’ or
directors’ resolution or by contract. Any repeal or modification of
these provisions approved by our stockholders will be prospective
only and will not adversely affect any limitation on the liability
of any of our directors or officers existing as of the time of such
repeal or modification.
We are also permitted to apply for insurance on behalf of any
director, officer, employee or other agent for liability arising
out of his actions, whether or not the General Corporation Law of
the State of Delaware would permit indemnification.
Item 16. Exhibits
(a) Exhibits
A list of exhibits filed with this registration statement on Form
S-3 is set forth on the Exhibit Index and is incorporated herein by
reference.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(a) Rule 415 Offering. 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:
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(i)
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To include any prospectus required by Section 10(a)(3) of the
Securities Act;
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(ii)
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To reflect in the prospectus any facts or events arising after the
effective date of this 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 this 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 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% change in
the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement;
and
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(iii)
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To include any material information with respect to the plan of
distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
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provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and
(a)(1)(iii) 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 Securities and Exchange
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, or is contained in a form
of prospectus filed pursuant to Rule 424(b) that is part of this
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) That, for the purpose of determining liability under the
Securities Act to any purchaser:
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(A)
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Each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of this registration statement as of the
date the filed prospectus was deemed part of and included in this
registration statement; and
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(B)
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Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5) or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii) or (x) for the purpose of providing the
information required by Section 10(a) of the Securities Act
shall be deemed to be part of and included in this registration
statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of this registration statement
relating to the securities in this registration statement to which
the prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no
statement made in a registration statement or prospectus that is
part of this registration statement or made in a document
incorporated or deemed incorporated by reference into this
registration statement or prospectus that is part of this
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify
any statement that was made in this registration statement or
prospectus that was part of this registration statement or made in
any such document immediately prior to such effective date; and
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(5)
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That, for the purpose of determining liability of the registrant
under the Securities Act to any purchaser in the initial
distribution of the securities, the undersigned registrant
undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such
purchaser:
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(i)
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Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant
to Rule 424;
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(ii)
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Any free writing prospectus relating to the offering prepared by or
on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
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(iii)
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The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
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(iv)
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Any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser.
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(b) Filings Incorporating Subsequent Exchange Act
Documents by Reference. 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) Request for Acceleration of Effective Date or Filing
of Registration Statement Becoming Effective Upon Filing.
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.
(d) That, for purposes of determining any liability under the
Securities Act, (i) the information omitted from the form of
prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under
the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective and
(ii) each post-effective amendment that contains a form of
prospectus 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.
EXHIBIT INDEX
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Exhibit No.
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Exhibit Description
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1.1
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At The Market Issuance Sales
Agreement between SilverSun Technologies, Inc. and H.C. Wainwright
& Co., LLC (incorporated herein by reference to Exhibit 1.1 of
the Registration Statement on Form S-3, filed with the SEC on
October 2, 2020)
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3.1
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Second Amended Certificate of
incorporation of SilverSun Technologies, Inc., filed September 5,
2003 (incorporated herein by reference to Exhibit 3.1 of the
Registration Statement on Form SB-2, filed with the SEC on November
25, 2003)
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3.2
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Fourth Amended and Restated
Certificate of incorporation of SilverSun Technologies, Inc.,
(incorporated herein by reference to Exhibit 3.1 on Form 8-K, dated
June 27, 2011, filed with the SEC on June 30, 2011).
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3.3
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Certificate of Elimination of Series
B Preferred Stock (incorporated herein by reference to Exhibit 3.1
on Form 8-K, dated September 13, 2019).
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3.4
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By-laws of iVoice, Inc., a New Jersey
corporation (incorporated herein by reference to Exhibit 3.2 of the
Registrant’s Form 10-QSB for the period ended March 31,
2003)
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3.5
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Amendment to the Bylaws of the
Company (incorporated herein by reference to Exhibit 3.2 on Form
8-K, dated June 27, 2011, filed with the SEC on June 30,
2011).
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4.1
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Form of Indenture relating to the
issuance from time to time in one or more series of debentures,
notes, bonds or other evidences of indebtedness (incorporated
herein by reference to Exhibit 4.1 of the Registration Statement on
Form S-3, filed with the SEC on October 2, 2020)
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5.1*
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Opinion of
Lucosky Brookman LLP
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23.1
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Consent of Friedman LLP (incorporated
herein by reference to Exhibit 23.1 of the Registration Statement
on Form S-3, filed with the SEC on October 2, 2020)
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23.2*
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Consent of
Lucosky Brookman LLP (reference is made to Exhibit 5.1)
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24.1*
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Power of Attorney (included on the
signature page of this Registration Statement)
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Filed herewith.
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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-3 and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of East Hanover, State of New Jersey, on October 21, 2020.
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SILVERSUN TECHNOLOGIES, INC.
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Date: October 21, 2020
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By:
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/s/ Mark Meller
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Mark Meller
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Chief Executive Officer
(Principal Executive Officer)
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Date: October 21, 2020
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By:
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/s/ Christine Dye
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Christine Dye
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Chief Financial Officer
(Principal Financial and Accounting Officer)
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POWER OF ATTORNEY:
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose
signature appears below constitutes and appoints Mark Meller, his
true and lawful attorneys-in-fact and agents 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
the Registration Statement that is to be effective upon 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 Securities and Exchange 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 or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or his, her or their substitute or
substitutes, may lawfully do or cause to be done or 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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Name
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Position
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Date
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/s/ Mark Meller
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Chairman, President, Chief Executive Officer and Director
(Principal Executive Officer)
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October 21, 2020
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Mark Meller
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/s/ Stanley Wunderlich
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Director
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October 21, 2020
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Stanley Wunderlich
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/s/ Joseph Macaluso
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Director
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October 21, 2020
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Joseph Macaluso
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/s/ John Schachtel
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Director
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October 21, 2020
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John Schachtel
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/s/ Christine Dye |
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Principal Financial Officer
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October 21,
2020 |
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Christine Dye
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(Principal Financial and Accounting Officer)
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