UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Spark Networks SE
(Exact name of Registrant as specified in its charter)
| Germany | Not Applicable |
| (State or other jurisdiction of incorporation or organization) | I.R.S. Employer Identification No. |
c/o Affinitas GmbH
Kohlfurter Straße 41/43
Berlin 10999
Germany
(+49) 30 868 000 102
(Address and telephone number of Registrant’s
principal executive offices)
Spark Networks SE
Virtual Stock Option Plan
Spark Networks, Inc.
2007 Omnibus Incentive Plan
(Full Title of the Plan)
Puglisi & Associates
850 Library Avenue
Suite 204
Newark, DE 19711
(302) 738-6680
Attention: Service of Process Department
(Name and address of agent for service)
(786) 509-6900
(Telephone number, including area code, of agent for service)
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. (Check one):
| Large accelerated filer | ¨ | Accelerated filer | ¨ |
| Non-accelerated filer | ¨ | Smaller reporting company | ¨ |
| Emerging growth company | þ |
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.
þ
CALCULATION OF REGISTRATION FEE
| Title of securities to be registered | Amount to be registered(1) | Proposed maximum offering price per share(2) | Proposed maximum aggregate offering price(2) | Amount of registration fee(3) | ||||||||||||
| Ordinary shares, no-par value, of Spark Networks SE | 93,353 | (4) | $ | 106.20 | $ | 9,914,088.60 | $ | 1,234.31 | ||||||||
| Ordinary shares, no-par value, of Spark Networks SE | 23,667 | (5) | $ | 374.73 | $ | 8,868,734.91 | $ | 1,104.16 | ||||||||
| (1) | In addition, pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an additional indeterminable number of ordinary shares of the registrant, no-par value (“Ordinary Shares”), that may become issuable under either of the Spark Networks SE Virtual Stock Option Plan (the “VSOP Plan”) or the Spark Networks, Inc. 2007 Omnibus Incentive Plan (the “Spark 2007 Plan” and, together with the VSOP Plan, the “Plans”), as may be necessary to adjust the number of Ordinary Shares being offered or issued pursuant to any such plan as a result of stock splits, stock dividends or similar transactions. |
| (2) | Estimated in accordance with Rule 457(h) under the Securities Act solely for the purpose of calculating the registration fee. The proposed maximum offering price per share and proposed maximum aggregate offering price are based on the weighted average exercise price of outstanding options under the applicable Plan to acquire American Depository Shares (“ADSs”), which may be converted into Ordinary Shares. Each ADS represents the right to receive 0.1 Ordinary Shares. Accordingly, the registration fee for the registration of Ordinary Shares set forth above is calculated by multiplying such weighted average exercise price of outstanding options to acquire ADSs by 10. |
| (3) | Determined in accordance with Section 6(b) of the Securities Act at a rate equal to $124.50 per $1,000,000 of the proposed maximum aggregate offering price. |
| (4) | Represents Ordinary Shares underlying ADSs issuable upon exercise or settlement of awards that have been granted pursuant to the VSOP Plan. The ADSs were registered pursuant to a separate Registration Statement on Form F-6 that was filed with the Securities and Exchange Commission on September 25, 2017. Each ADS represents the right to receive 0.1 Ordinary Shares. |
| (5) | Represents Ordinary Shares underlying ADSs issuable upon exercise or settlement of awards that have been granted pursuant to the Spark 2007 Plan (as converted based on the exchange ratio of 0.01 Ordinary Shares for each share of Spark Networks, Inc. common stock, par value $0.001 per share, outstanding immediately prior to the completion of the business combination) (described below). The ADSs were registered pursuant to a separate Registration Statement on Form F-6 that was filed with the Securities and Exchange Commission on September 25, 2017. Each ADS represents the right to receive 0.1 Ordinary Shares. |
EXPLANATORY NOTE
Pursuant to the agreement and plan of merger, dated May 2, 2017 (the “Merger Agreement”), entered into by Spark Networks SE (f/k/a Blitz 17-655 SE) (“Spark SE” or the “Registrant”), a European stock corporation (Societas Europaea, SE) with its corporate seat in Germany, Affinitas GmbH, a German limited company (“Affinitas”), Spark Networks, Inc., a Delaware corporation (“Old Spark”), and Chardonnay Merger Sub, Inc., a Delaware corporation and a direct wholly owned subsidiary of the Registrant, the parties agreed to combine the businesses of Affinitas and Old Spark under Spark Networks SE, a new holding company organized under the laws of Germany. As a result of the completion of the transactions contemplated by the Merger Agreement, Old Spark became a wholly owned subsidiary of Spark SE.
Pursuant to the Merger Agreement, each option to acquire shares of Old Spark (“Old Spark Stock Options”) was exchanged for awards to acquire (on the same terms and conditions as were applicable under the Old Spark Stock Options), from a trust formed prior to the effective time of the merger, a number of American depositary shares of the Registrant (“ADSs”) equal to (w) the number of shares of Old Spark subject to such Old Spark Stock Option multiplied by (x) the Adjustment Ratio (as defined below) (the result rounded down to the nearest whole ADS), with an exercise price per share (rounded up to the nearest whole cent) equal to (y) the per share exercise price specified in such Old Spark Stock Option, divided by (z) the Adjustment Ratio (with the result rounded up to the nearest whole cent). The “Adjustment Ratio” means 0.1.
This Registration Statement on Form S-8 (the “Registration Statement”) relates to (x) the registration of Ordinary Shares, no par value, of Spark SE to be offered and sold with respect to options granted under Old Spark’s 2007 Omnibus Incentive Plan (the “Spark 2007 Plan”), which options were assumed by Spark SE pursuant to the Merger Agreement and in connection with the Business Combination (as defined in the Registrant’s Registration Statement on Form F-4) and (y) the registration of Ordinary Shares, no par value of Spark SE, under the VSOP Plan which was adopted to replace the old Affinitas virtual stock plan.
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Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
| Item 1. | Plan Information* |
| Item 2. | Registrant Information and Employee Plan Annual Information* |
| * | Information required by Part I to be contained in a Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the Note to Part I of Form S-8. |
Upon written or oral request, the Registrant will provide, without charge, the documents incorporated by reference in Item 3 of Part II of this registration statement. The Registrant also will provide without charge, upon written or oral request, other documents required to be delivered to employees pursuant to Rule 428(b) under the Securities Act. Requests for the above mentioned information should be directed to: Spark Networks SE, Attention: Michael Schrezenmaier, Chief Operating Officer, telephone number Tel: (+49) 30 868 000 102.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference |
The following documents previously filed by the Registrant with the Securities and Exchange Commission (the “Commission”) are incorporated by reference in this Registration Statement:
| 1. | Spark SE’s final prospectus filed with the Commission pursuant to Rule 424(b)(3) under the Securities Act on October 19, 2017 (the “Prospectus”) in connection with the Registrant’s Registration Statement on Form F-4 (File No. 333-220000), originally filed with the Commission on August 16, 2017 (as amended, the “Form F-4 Registration Statement”); and |
| 2. | The description of the Ordinary Shares and American Depositary Shares included in the Form F-4 Registration Statement, which description is incorporated by reference into the Form 8-A (File No. 001-38252) filed with the Commission on October 20, 2017, pursuant to the Exchange Act, and any amendment or report filed for the purpose of updating such description. |
In addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act of 1934, as amended (the “Exchange Act”) prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.
| Item 4. | Description of Securities. |
Not Applicable.
| Item 5. | Interests of Named Experts and Counsel |
Not Applicable.
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| Item 6. | Indemnification of Directors and Officers |
Under German law, Spark SE may not, as a general matter, indemnify the members of its administrative board or the Spark SE managing directors to the extent such indemnification is related to a breach of duty of care as a member of the administrative board or Spark SE managing director, respectively.
Subject to the provisions of section 16, paragraph 4 of its Articles of Association, Spark SE may purchase and maintain insurance for or for the benefit of any person who is or was member of the administrative board of the Registrant, including insurance against any loss or liability or any expenditure he or she may incur, whether in connection with any proven or alleged act or omission in the actual or purported execution or discharge of his or her duties.
The receipt of any such benefit shall not disqualify any person from being or becoming a Registrant administrative board member.
| Item 7. | Exemption from Registration Claimed |
Not applicable.
| Item 8. | Exhibits |
See Exhibit Index on page 6.
| Item 9. | Undertakings |
| (a) | The Registrant hereby undertakes: |
| (1) | To file, during any period in which offers or sales are being made of the securities registered hereby, 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 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 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 |
| (iii) | 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; |
provided,however, that the undertakings set forth in paragraphs (1)(i) and (1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in 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. |
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| (b) | The Registrant hereby further 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 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, unless in the opinion of its counsel the matter has been settled by controlling precedent, will 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. |
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EXHIBIT INDEX
* Filed herewith
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Berlin, Country of Germany, on December 22, 2017.
| SPARK NETWORKS SE | ||
| By: | /s/ Robert O’Hare | |
| Name: Robert O’Hare | ||
| Title: Chief Financial Officer | ||
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and appoints Jeronimo Folgueira, Robert O’Hare and Michael Schrezenmaier, and each of them acting individually, his true and lawful attorney-in-fact and agent with 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 post-effective amendments) to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Commission, granting unto 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 to comply with the provisions of the Securities Act and all requirements of the Commission, hereby ratifying and confirming all that said attorney-in-fact, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated:
| Signatures | Title | Date | ||
| /s/ Jeronimo Folgueira | Managing Director (Principal Executive Officer) and Member of the Administrative Board | December 22, 2017 | ||
| Jeronimo Folgueira | ||||
| /s/ Robert O’Hare | Managing Director (Principal Financial Officer) | December 22, 2017 | ||
| Robert O’Hare | ||||
| /s/ Bradley J. Goldberg | Member of the Administrative Board | December 22, 2017 | ||
| Bradley J. Goldberg | ||||
| /s/ David Khalil | Member of the Administrative Board | December 22, 2017 | ||
| David Khalil | ||||
| /s/ Colleen Birdnow Brown | Member of the Administrative Board | December 22, 2017 | ||
| Colleen Birdnow Brown | ||||
| /s/ Joshua Keller | Member of the Administrative Board | December 22, 2017 | ||
| Joshua Keller | ||||
| /s/ Axel Hefer | Member of the Administrative Board | December 22, 2017 | ||
| Axel Hefer | ||||
| /s/ Donald J. Puglisi | Authorized Representative in the United States | December 22, 2017 | ||
| Donald J. Puglisi | ||||
| Title: Managing Director, Puglisi & Associates |
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