As filed with the Securities and Exchange Commission on May 28, 2015
Registration No. 333-_______
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION |
Washington, D.C. 20549
FORM S-8
Registration Statement
UNDER THE SECURITIES ACT OF 1933
LRAD Corporation
(Exact name of registrant as specified in its charter)
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Delaware |
87-0361799 | |
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(State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) |
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16990 Goldentop Road, Suite A San Diego, CA 92127 (858) 676-1112 |
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(Address of Principal Executive Offices) |
LRAD Corporation 2015 Equity Incentive Plan
(Full Title of the Plan)
The Corporation Trust Company
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
(302) 658-7581
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
Copy to:
Joshua E. Little, Esq.
Durham Jones & Pinegar, P.C.
192 East 200 North, 3rd Floor
St. George, UT 84770
(435) 674-0400
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.
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Large accelerated filer ☐ |
Accelerated filer ☐ |
Non-accelerated filer ☐ |
Smaller reporting company ☒ |
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CALCULATION OF REGISTRATION FEE | ||||
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Title of Each Class 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 |
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Common stock, par value $.00001 per share |
5,000,000 shares |
$2.44 (2) |
$12,200,000 |
$1,417.64 |
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Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also registers an indeterminate number of additional shares that may be issued pursuant to the above-named plan as the result of any future stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of our outstanding shares of common stock. |
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(2) |
This estimate is made pursuant to Rules 457(c) and 457(h) of the Securities Act solely for purposes of calculating the registration fee. The Proposed Maximum Offering Price Per Share is $2.44, which is the average of the high and low prices for the Registrant’s common stock as reported on The NASDAQ Stock Market on May 27, 2015. |
| (3) | In accordance with Rule 457(p) under the Securities Act, the $1,417.64 registration fee is being offset by the previous overpayment of $371.52 filing fee in connection with the Registration Statement filed by the Registrant on March 2, 2011 on Form S-3 with File No. 333-172552. |
Proposed sales to take place as soon after the effective date of the Registration Statement as awards granted under the above-named plan are granted, exercised and/or distributed.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
In this Registration Statement, LRAD Corporation is sometimes referred to as the “Company,” “Registrant,” “we,” “us” or “our.”
Item 3. Incorporation of Documents by Reference.
The Securities and Exchange Commission (“SEC”) allows us to “incorporate by reference” the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this Registration Statement, and later information filed with the SEC will update and supersede this information. We hereby incorporate by reference into this Registration Statement the following documents previously filed with the SEC:
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(a) |
The Registrant’s Annual Report on Form 10-K for the year ended September 30, 2014, filed on November 20, 2014. |
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(b) |
The Registrant’s Quarterly Reports on Form 10-Q for the quarterly periods ended December 31, 2014, filed on February 5, 2015, and March 31, 2015, filed on May 7, 2015. |
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(c) |
The Registrant’s Current Reports on Forms 8-K filed on November 20, 2014, February 5, 2015, March 24, 2015 and May 7, 2015. |
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(d) |
The description of the Registrant’s common stock contained in the Registration Statement on Form 10-SB, effective August 1, 1994, including any amendment or reports filed for the purpose of updating such description. |
In addition, all documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the filing of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which de-registers 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 such documents, except as to specific sections of such statements as set forth therein. Any statement contained in a document 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 incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement contained herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any subsequently filed document which also is incorporated or 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 superseded, to constitute a part of this Registration Statement.
Notwithstanding the foregoing, under no circumstances shall any information furnished under Item 2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference unless such Form 8-K expressly provides to the contrary.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Our Certificate of Incorporation provides that no director is liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Law. Section 102(b)(7) of the Delaware General Corporate Law enables a corporation, in its certificate of incorporation or an amendment thereto, to eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for violations of the directors’ fiduciary duty, except (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) pursuant to Section 174 of the Delaware General Corporation Law (providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions); or (iv) for any transaction from which a director derived an improper personal benefit. We will indemnify our directors against attorneys’ fees and other expenses and liabilities they incur to defend, settle or satisfy any civil or criminal action brought against them arising out of their association with or activities on behalf of us except as set forth above. We may also bear the expenses of such litigation for any such persons upon their promise to repay such sums if it is ultimately determined that they are not entitled to indemnification. Such expenditures could be substantial and may not be recouped, even if we are so entitled. Insofar as indemnification for liabilities arising under the Securities Act of 1933 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, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
We currently have directors’ and officers’ liability insurance to provide our directors and officers with insurance coverage for losses arising from claims based on breaches of duty, negligence, errors and other wrongful acts.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibit Index on page 5 is incorporated herein by reference as the list of exhibits required as part of this Registration Statement.
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;
(ii) 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if this 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 reports filed with or furnished to the SEC 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.
(b) 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 this 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 SEC 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.
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 San Diego, State of California, on May 28, 2015.
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LRAD Corporation |
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By: |
/s/ Thomas R. Brown |
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Thomas R. Brown |
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President, Chief Executive Officer and Director |
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POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Thomas R. Brown and Katherine H. McDermott, jointly and severally, his or her attorney-in-fact, each with the full power of substitution, for him or her in any and all capacities, to sign this Registration Statement, and any amendments thereto (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the SEC, hereby ratifying and confirming all that each of said attorneys-in-fact, or his or her substitute or substitutes, may 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 on behalf of the Registrant and in the capacities and on the dates indicated.
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Signature |
Title |
Date | ||
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/s/ Thomas R. Brown |
President, Chief Executive Officer, & Director |
May 28, 2015 | ||
| Thomas R. Brown | ||||
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/s/ Katherine H. McDermott |
Chief Financial Officer and Secretary |
May 28, 2015 | ||
| Katherine H. McDermott | ||||
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/s/ John G. Coburn |
Chairman of the Board |
May 28, 2015 | ||
| John G. Coburn | ||||
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/s/ Laura M. Clague |
Director |
May 28, 2015 | ||
| Laura M. Clague | ||||
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/s/ Richard H. Osgood III |
Director |
May 28, 2015 | ||
| Richard H. Osgood III | ||||
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/s/ Dennis J. Wend |
Director |
May 28, 2015 | ||
| Dennis J. Wend | ||||
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EXHIBIT INDEX
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Exhibit Number |
Exhibit Description |
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5.1 |
Opinion of Durham Jones & Pinegar, P.C. |
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10.1 |
LRAD Corporation 2015 Equity Incentive Plan. Filed as an exhibit to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on March 24, 2015 and incorporated herein by reference. |
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10.2 |
Form of Stock Option Agreement under the LRAD Corporation 2015 Equity Incentive Plan filed as an exhibit to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on March 24, 2015 and incorporated herein by reference. |
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23.1 |
Consent of Squar, Milner, Peterson, Miranda & Williamson, LLP independent registered public accounting firm |
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23.2 |
Consent of Durham Jones & Pinegar, P.C. (included in Exhibit 5.1) |
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24.1 |
Power of Attorney (see signature page) |
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