As filed with the Securities and Exchange Commission on April 6, 2016
Registration No. 333 -
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SPHERIX INCORPORATED
(Exact name of registrant as specified in its charter)
| Delaware | | 52-0849320 |
(State or other jurisdiction of incorporation or
organization) | | (I.R.S. Employer identification No.) |
1350 Ave of the Americas, 2nd Floor, New York, NY 10019
(Address of principal executive offices) (Zip Code)
Spherix Incorporated 2014 Equity Incentive Plan
(full title of the plan)
Anthony Hayes
Chief Executive Officer
Spherix Incorporated
1350 Ave of the Americas, 2nd Floor
New York, NY 10019
(Name and address of agent for service)
Telephone: (703) 992-9260
(Telephone number, including area code, of agent for service)
With a copy to:
Theodore J. Ghorra, Esq.
Nixon Peabody LLP
437 Madison Avenue
New York, New York 10022
Telephone: (212) 940-3000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| ¨ | Large accelerated filer | | ¨ | Accelerated filer |
| ¨ | Non-accelerated filer | | x | Smaller reporting company |
CALCULATION OF REGISTRATION FEE
| Title of Securities to be registered | | Amount to be
Registered(1)(2) | | | Proposed
Maximum
Offering
Price per
Security(3) | | | Proposed
Maximum
Aggregate
Offering
Price(3) | | | Amount of
Registration
Fee | |
| Common Stock, $0.0001 par value to be issued under the 2014 Equity Incentive Plan | | | 4,088,000 | | | $ | 2.18 | | | $ | 8,911,840 | | | $ | 897.43 | |
| Total | | | 4,088,000 | | | $ | 2.18 | | | $ | 8,911,840 | | | $ | 897.43 | |
| | (1) | Represents additional shares of common stock, par value $0.0001 per share (the “Common Stock”), of Spherix Incorporated (the “Registrant”) authorized for issuance under the Spherix Incorporated 2014 Equity Incentive Plan, as amended (the “2014 Plan”). |
| | | |
| | (2) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement on Form S-8 (this “Registration Statements”) shall also cover any additional shares of Common Stock that may be offered or issued under the Plan by reason of any stock dividend, stock split, recapitalization or any other similar transaction. |
| | (3) | Estimated pursuant to Rules 457(c) and 457(h) under the Securities Act solely for the purpose of calculating the registration fee, based on the average of the high and low prices of the Registrant’s common stock as reported on the NASDAQ Capital Market on March 15, 2016. |
EXPLANATORY NOTE
REGISTRATION OF ADDITIONAL SECURITIES
This Registration Statement registers an additional 4,088,000 shares of the Registrant’s Common Stock that may be offered and sold under the Plan. This Registration Statement relates solely to the registration of additional securities of the same class as other securities for which one or more other registration statements filed on this form relating to the same employee benefit plan are effective. Pursuant to General Instruction E to Form S-8, the contents of the Registrant’s previously filed registration statement on Form S-8 relating to the Plan (File No. 333-197429), filed with the Securities and Exchange Commission on July 15, 2014, including any amendments thereto or filings incorporated therein, are hereby incorporated by reference herein to the extent not otherwise amended or superseded by the contents hereof.
On February 26, 2016, the Registrant held a special meeting (the “Special Meeting”) of its stockholders, which had been adjourned from February 22, 2016. At the Special Meeting, the Registrant’s stockholders voted affirmatively, among other things, to amend the 2014 Plan to increase the number of shares of Common Stock authorized to be issued pursuant to the 2014 Plan from 4,161,892 to 8,250,000 (disregarding the effect of the reverse stock split).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits
EXHIBIT
NUMBER | | EXHIBITS |
| | | |
| 5.1 | | Opinion of Nixon Peabody LLP |
| 23.1 | | Consent of Marcum LLP |
| 23.2 | | Consent of Nixon Peabody LLP (included in Exhibit 5.1) |
| 24.1 | | Power of Attorney (included on the signature page of this Registration Statement) |
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 of an amendment to a filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized on April 6, 2016.
SPHERIX INCORPORATED
| Date: April 6, 2016 | | |
| | | |
| | By: | /s/ Anthony Hayes |
| | | Name: Anthony Hayes Title: Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Anthony Hayes as his true and lawful attorney in fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933 and any and all amendments (including post effective amendments) to this registration statement and to any registration statement filed pursuant to Rule 462(b), and to file same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each 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 in and about the foregoing, 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 either of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
In accordance with the requirement of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates stated:
| Name | | Position | | Date |
| | | | | |
| /s/ Anthony Hayes | | Chief Executive Officer, Director | | April 6, 2016 |
| Anthony Hayes | | | | |
| | | | | |
| /s/ Frank Reiner | | Interim Chief Financial Officer | | April 6, 2016 |
| Frank Reiner | | | | |
| | | | | |
| /s/ Robert J. Vander Zanden | | Director, Chairman of the Board | | April 6, 2016 |
| Robert J. Vander Zanden | | | | |
| | | | | |
| /s/ Howard E. Goldberg | | Director | | April 6, 2016 |
| Howard E. Goldberg | | | | |
| | | | | |
| /s/ Jeff Ballabon | | Director | | April 6, 2016 |
| Jeff Ballabon | | | | |
| | | | | |
| /s/ Tim Ledwick | | Director | | April 6, 2016 |
| Tim Ledwick | | | | |
EXHIBIT INDEX
EXHIBIT
NUMBER | | EXHIBITS |
| | | |
| 5.1 | | Opinion of Nixon Peabody LLP |
| 23.1 | | Consent of Marcum LLP |
| 23.2 | | Consent of Nixon Peabody LLP (included in Exhibit 5.1) |
| 24.1 | | Power of Attorney (included on the signature page of this Registration Statement) |
