Securities Registration: Employee Benefit Plan (s-8)
September 19 2019 - 4:08PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on September 19, 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
Vislink
Technologies, Inc.
(Exact
name of registrant as specified in its charter)
Delaware
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20-5856795
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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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240
S. Pineapple Avenue, Suite 701, Sarasota, FL
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34236
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(Address
of Principal Executive Offices)
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(Zip
Code)
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xG
Technology, Inc. 2016 Employee Stock Purchase Plan
(Full title of the plan)
Roger
G. Branton
Chief Executive Officer and Chief Financial Officer
240 S. Pineapple Avenue, Suite 701
Sarasota, FL 34236
(Name and address of agent for service)
(941)
953-9035
(Telephone number, including area code, of agent of service)
Copy
to:
David
Danovitch, Esq.
Sullivan
& Worcester LLP
1633
Broadway
New
York, NY 10019
Telephone:
(212) 660-3000
Facsimile:
(212) 660-3001
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 [ ] Non-accelerated filer [X] Smaller reporting company [X] 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.
[ ]
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
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|
Common
Stock, par value $0.00001 per share, to be issued under the xG Technology, Inc. 2016 Employee Stock Purchase Plan (1)
|
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1,000,000
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$
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0.80
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|
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$
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800,000
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$
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97
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|
Total
|
|
|
1,000,000
|
|
|
|
|
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|
$
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800,000
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$
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97
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|
(1)
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Represents
1,000,000 shares of the common stock, par value $0.00001 per share (the “Common Stock”) of Vislink Technologies,
Inc.(formerly known as xG Technology, Inc., and collectively the “Company” or the “Registrant”) issuable
pursuant to the Company’s 2016 Employee Stock Purchase Plan (the “2016 Plan”). Pursuant to Rule 416(a) under
the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any
additional shares of Common Stock that become issuable under the 2016 Plan by reason of any stock dividend, stock split, recapitalization
or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of
the Common Stock.
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(2)
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Estimated
in accordance with Rule 457(c) and Rule 457(h) under the Securities Act, solely for the purpose of calculating the applicable
registration fee. The proposed maximum offering price per share of Common Stock represents the average of the high and low
prices of the Common Stock as reported on the Nasdaq Capital Market on September 18, 2019.
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
documents containing the information specified in Part I of Form S-8 will be delivered in accordance with Rule 428(b)(1) of the
Securities Act. Such documents are not required to be filed with the U.S. Securities and Exchange Commission (the “Commission”)
either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents,
and the documents incorporated by reference in 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.
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Incorporation
of Documents by Reference.
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Incorporated
by reference in this Registration Statement are the following documents filed by the Company with the Commission pursuant to the
Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”):
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(a)
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Annual
Report on Form 10-K for the fiscal year ended December 31, 2018, filed on April 1, 2019.
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(b)
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Quarterly
Report on Form 10-Q for the quarters ended March 31, 2019 and June 30, 2019, as filed with the Commission on May 15, 2019
and August 14, 2019, respectively.
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(c)
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Current
Reports on Form 8-K, as filed with the Commission on January 29, 2019, February 26, 2019, March 5, 2019, April 3, 2019, May
3, 2019, May 17, 2019, June 7, 2019, and July 16 ,2019.
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(d)
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The
description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form 8-A,
filed on June 26, 2013 (File No. 001-35988), pursuant to Section 12(b) of the Exchange Act, as amended by Amendment No. 1
thereto, filed with the Commission on July 18, 2013, including all other amendments and reports filed for the purpose of updating
such description.
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All
documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that all
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 a part hereof from the date of filing of such documents; provided, however,
that documents or information deemed to have been furnished and not filed in accordance with Commission rules shall not be deemed
incorporated by reference into this Registration Statement. Any statement contained herein or in a document, all or a portion
of which is 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 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 amended, 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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The
Delaware General Corporation Law and certain provisions of our certificate of incorporation, as amended, and bylaws under certain
circumstances provide for indemnification of our officers, directors and controlling persons against liabilities which they may
incur in such capacities. A summary of the circumstances in which such indemnification is provided for is contained herein, but
this description is qualified in its entirety by reference to our certificate of incorporation, as amended, bylaws and to the
statutory provisions.
In
general, any officer, director, employee or agent may be indemnified against expenses, fines, settlements or judgments arising
in connection with a legal proceeding to which such person is a party, if that person’s actions were in good faith, were
believed to be in our best interest, and with respect to any criminal action or proceeding, such person had no reasonable cause
to believe their actions were unlawful. Unless such person is successful upon the merits in such an action, indemnification may
be awarded only after a determination by independent decision of the board of directors, by legal counsel, or by a vote of the
stockholders, that the applicable standard of conduct was met by the person to be indemnified.
The
circumstances under which indemnification is granted in connection with an action brought on our behalf is generally the same
as those set forth above; however, with respect to such actions, indemnification is granted only with respect to expenses actually
incurred in connection with the defense or settlement of the action. In such actions, unless the court determines otherwise, the
person to be indemnified must have acted in good faith and in a manner believed to have been in our best interest, and have not
been adjudged liable to the corporation.
Indemnification
may also be granted pursuant to the terms of agreements which we are currently party to with each of our directors and executive
officers, agreements which we may enter into in the future or pursuant to a vote of stockholders or directors. Delaware law and
our certificate of incorporation also grant the power to us to purchase and maintain insurance which protects our officers and
directors against any liabilities incurred in connection with their service in such a position, and such a policy may be obtained
by us.
A
stockholder’s investment may be adversely affected to the extent we pay the costs of settlement and damage awards against
directors and officers as required by these indemnification provisions. There is no pending litigation or proceeding involving
any of our directors, officers or employees regarding which indemnification by us is sought, nor are we aware of any threatened
litigation that may result in claims for indemnification.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling
us pursuant to the foregoing provisions, we have been informed that, in the opinion of the Commission, this indemnification is
against public policy as expressed in the Securities Act and is therefore unenforceable.
Item
7.
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Exemption
from Registration Claimed.
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Not
Applicable.
(a)
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The
undersigned registrant hereby undertakes:
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(1)
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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 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;
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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 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) do 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 Commission by the Registrant pursuant to Section 13 or 15(d)
of the Exchange Act that are incorporated by reference in the Registration Statement.
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(2)
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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; and
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(3)
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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.
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(b)
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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.
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(c)
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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 any 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 of whether or not 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.
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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-8 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Sarasota, State of Florida on the 19th
day of September, 2019.
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VISLINK
TECHNOLOGIES, INC.
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By:
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/s/
Roger G. Branton
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Name:
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Roger
G. Branton
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Title:
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Chief
Executive Officer and Chief Financial Officer
(Principal
Executive, Financial and Accounting Officer)
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POWER
OF ATTORNEY: KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Roger
G. Branton, his or her true and lawful attorneys-in-fact and agents with full power of substitution, for him or her and in his
or her 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 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 or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of Securities Act of 1933, as amended, this Registration Statement has been signed below by the following
persons on behalf of the Registrant and in the capacities and on the dates indicated.
Person
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Capacity
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Date
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/s/
Roger G. Branton
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Chief
Executive Officer and Chief Financial Officer
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September
19, 2019
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Roger
G. Branton
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(Principal
Executive, Financial and Accounting Officer)
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/s/
Susan Swenson
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Chairman
of the Board of Directors
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September
19, 2019
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Susan
Swenson
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/s/
George F. Schmitt
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Director
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September
19, 2019
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George
F. Schmitt
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/s/
Richard L. Mooers
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Director
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September
19, 2019
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Richard
L. Mooers
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/s/
Raymond M. Sidney
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Director
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September
19, 2019
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Raymond
M. Sidney
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/s/
James T. Conway
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Director
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September
19, 2019
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James
T. Conway
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/s/
Jude T. Panetta
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Director
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September
19, 2019
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Jude
T. Panetta
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