As filed with the Securities and Exchange Commission on August 9, 2017
Registration No. 333-_______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LONG ISLAND ICED TEA CORP.
(Exact name of registrant as specified in its charter)
| Delaware | 47-2624098 | |
| (State or other jurisdiction of | (IRS Employer | |
| incorporation or organization) | Identification Number) |
116 Charlotte Avenue
Hicksville, New York 11801
(Address of Principal Executive Offices)
LONG ISLAND ICED TEA CORP. 2015 LONG-TERM INCENTIVE EQUITY PLAN
(Full title of the plan)
Philip Thomas, Chief Executive Officer
Long Island Iced Tea Corp.
116 Charlotte Avenue
Hicksville, New York 11801
(Name, address and telephone number, including area code, of agent for service)
with a copy to:
David Alan Miller, Esq.
Jeffrey M. Gallant, Esq.
Graubard Miller
The Chrysler Building
405 Lexington Avenue, 11th floor
New York, NY 10174
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 [ ] | Smaller reporting company [X] | |
| (Do not check if a smaller reporting 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. [X]
CALCULATION OF REGISTRATION FEE
| Title of securities to be registered | Amount to be registered(1) | Proposed maximum offering price per share | Proposed maximum aggregate offering price | Amount of registration fee | ||||||||||
| Common Stock, par value $.0001 per share, newly reserved under the Long Island Iced Tea Corp. 2015 Long-Term Incentive Equity Plan, as amended and restated, subject to outstanding options | 275,594 shares(2) | $ | 4.51 | (2) | $ | 1,242,929 | $ | 144.06 | ||||||
| Common Stock, par value $.0001 per share, newly reserved under the Long Island Iced Tea Corp. 2015 Long-Term Incentive Equity Plan, as amended and restated | 7,639 shares(2) | $ | 4.29 | (3) | $ | 32,771 | $ | 3.80 | ||||||
| Total | $ | 147.86 | ||||||||||||
| (1) | Pursuant to Rule 416, this registration statement also covers such additional securities that may be offered pursuant to the terms of the Long Island Iced Tea Corp. 2015 Long-Term Incentive Equity Plan, as amended and restated, as a result of one or more adjustments under the plan to prevent dilution resulting from one or more stock splits, stock dividends or similar transactions. |
| (2) | Shares of common stock newly reserved under the Long Island Iced Tea Corp. 2015 Long-Term Incentive Equity Plan, as amended and restated, that are subject to outstanding options. Pursuant to Rule 457(h) promulgated under the Securities Act of 1933, as amended, the proposed maximum offering price per share was calculated on the basis of the exercise price of the options. The exercise price presented is a weighted average exercise price. |
| (3) | Shares of common stock newly reserved under the Long Island Iced Tea Corp. 2015 Long-Term Incentive Equity Plan, as amended and restated, that are not subject to outstanding options. Pursuant to Rule 457(c) and 457(h) promulgated under the Securities Act of 1933, as amended, the proposed maximum offering price per share was calculated on the basis of the average of the high and low prices of our common stock as reported on the NASDAQ Capital Market on August 8, 2017. |
In accordance with the provisions of Rule 462 promulgated under the Securities Act of 1933, as amended, the Registration Statement will become effective upon filing with the Securities and Exchange Commission.
EXPLANATORY NOTE
This Registration Statement is filed by Long Island Iced Tea Corp. (the “Company”) to register additional securities issuable pursuant to the Company’s 2015 Long-Term Incentive Equity Plan, as amended and restated (the “Plan”), and consists of only those items required by General Instruction E to Form S-8. The Company hereby incorporates by reference into this Registration Statement the contents of the prior registration statement on Form S-8 relating to the Plan, filed with the Securities and Exchange Commission (the “SEC”) on September 20, 2016 (File No. 333-213711).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents that we have previously filed with the SEC are incorporated by reference in this registration statement (excluding any reports or portions thereof that are furnished under Item 2.02 or Item 7.01 of a Current Report on Form 8-K and any exhibits included with such items):
| ● | Annual Report on Form 10-K for the fiscal year ended December 31, 2016 (filed March 31, 2017). | |
| ● | Quarterly Report on Form 10-Q for the fiscal quarters ended March 31, 2017 (filed May 12, 2017). | |
| ● | Current Reports on Form 8-K dated January 17, 2017 (filed January 18, 2017), January 25, 2017 (filed January 25, 2017), January 27, 2017 (filed January 27, 2017), January 30, 2017 (filed January 30, 2017), March 10, 2017 (filed March 15, 2017), June 14, 2017 (filed June 15, 2017), June 14, 2017 (filed June 16, 2017), July 6, 2017 (filed July 7, 2017), July 7, 2017 (filed July 13, 2017) and July 11, 2017 (filed July 14, 2017). | |
| ● | Form 8-A filed on June 20, 2016 registering our common stock, under Section 12(b) of the Exchange Act. |
All documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), prior to the filing of a post-effective amendment which indicates that all the securities offered have been sold or which deregisters all securities then remaining unsold (excluding any reports or portions thereof that are furnished under Item 2.02 or Item 7.01 of a Current Report on Form 8-K and any exhibits included with such items), will be deemed to be incorporated by reference in this registration statement and to be a part of this registration statement from the respective date of filing. Any statement contained in a document incorporated by reference in this registration statement will be modified or superseded for all purposes to the extent that a statement contained in this registration statement or in any other subsequently filed document which is incorporated by reference modifies or replaces the 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 5. | Interests of Named Experts and Counsel. |
Graubard Miller issued the opinion as to the legality of the shares of our common stock being registered pursuant to this registration statement. Graubard Miller owns 51,295 shares of our common stock.
| II-1 |
| Item 8. | Exhibits. |
See the Exhibit Index, which is incorporated herein by reference.
| 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; | |
| (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) do not apply if the registration statement is on Form S-8, and 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 Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this 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 initialbona 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 Securities 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.
(h) 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 procedures, 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 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 against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
| II-2 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Hicksville, New York on this 9th day of August, 2017.
| LONG ISLAND ICED TEA CORP. | ||
| By: | /s/ Philip Thomas | |
| Philip Thomas, Chief Executive Officer | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Philip Thomas and Richard Allen, and each of them, with full power to act without the other, such person’s true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign this registration statement, any and all amendments thereto (including post-effective amendments), and any amendments thereto and to file the same, with exhibits and schedules thereto, and other 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 necessary or desirable 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 or his substitute or substitutes, may lawfully do or cause to be done 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.
| Signatures | Title | Date | |||
| By: | /s/ Philip Thomas | Chief Executive Officer (Principal Executive Officer) | August 9, 2017 | ||
| Philip Thomas | |||||
| By: | /s/ Richard Allen | Chief Financial (Principal Financial Officer and | August 9, 2017 | ||
| Richard Allen | Principal Accounting Officer) | ||||
| By: | /s/ Julian Davidson | Executive Chairman | August 9, 2017 | ||
| Julian Davidson | |||||
| By: | /s/ Edward Hanson | Director | August 9, 2017 | ||
| Edward Hanson | |||||
| By: | /s/ Kerry Kennedy | Director | August 9, 2017 | ||
| Kerry Kennedy | |||||
| By: | /s/ Richard Roberts | Director | August 9, 2017 | ||
| Richard Roberts | |||||
| By: | /s/ Paul Vassilakos | Director | August 9, 2017 | ||
| Paul Vassilakos | |||||
| By: | /s/ Tom Cardella | Director | August 9, 2017 | ||
| Tom Cardella | |||||
| II-3 |
EXHIBIT INDEX
| Exhibit No. | Description | |
| 4.1 | Long Island Iced Tea Corp. Long-Term Incentive Equity Plan, as Amended and Restated. | |
| 5.1 | Opinion of Graubard Miller. | |
| 23.1 | Consent of Marcum LLP. | |
| 23.2 | Consent of Graubard Miller (included in Exhibit 5.1). | |
| 24.1 | Power of Attorney (included on the signature page hereto). |
| II-4 |
