As
filed with the Securities and Exchange Commission on August 6, 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
Coffee
Holding Co., Inc.
(Exact
Name of Registrant as Specified in Its Charter)
| Nevada |
|
11-2238111 |
(State
or Other Jurisdiction of
Incorporation or Organization) |
|
(I.R.S.
Employer
Identification Number) |
Coffee
Holding Co., Inc.
3475
Victory Boulevard
Staten
Island, NY 10314
(718)
832-0800
(Address,
Including Zip Code of Principal Executive Offices)
Coffee
Holding Co., Inc. 2013 Equity Incentive Plan
(Full
title of Plans)
Andrew
Gordon
President,
Chief Executive Officer, Chief Financial Officer and Treasurer
Coffee
Holding Co., Inc.
3475
Victory Boulevard
Staten
Island, NY 10314
(718)
832-0800
(Name,
address and telephone number, including area code, of agent for service)
Copies
to:
Steven
M. Skolnick, Esq.
Lowenstein
Sandler LLP
1251
Avenue of the Americas
New
York, New York 10020
Telephone:
(212) 262-6700
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 | |
Amount To Be Registered(1) | | |
Proposed Maximum Offering Price Per Share | | |
Proposed Maximum Aggregate Offering Price | | |
Amount Of Registration Fee | |
| Common Stock, $0.001 par value per share | |
| 1,000,000 | | |
$ | 3.99 | (2) | |
$ | 3,990,000 | (2) | |
$ | 483.58 | (2)(3) |
| |
(1) |
This
Registration Statement on Form S-8 (this “Registration Statement”) covers (i) common stock, $0.001 par value per
share (“Common Stock”), of Coffee Holding Co., Inc. (the “Registrant”) issuable pursuant to the Coffee
Holding Co., Inc. 2013 Equity Incentive Plan (the “Plan”); and (ii) pursuant to Rule 416 under the Securities
Act of 1933, as amended (the “Securities Act”), any additional Common Shares that become issuable under the Plan
by reason of any share dividend, share split, recapitalization or other similar transaction. |
| |
(2) |
Estimated
pursuant to Rule 457(h) and Rule 457(c) under the Securities Act, solely for the purpose of computing the registration fee
for Common Shares to be issued pursuant to the Plan, based on the average of the high and low prices reported for a Common
Share on The Nasdaq Stock Market LLC on July 30, 2019, which is within five business days prior to the date of this
Registration Statement. |
| |
(3) |
Pursuant
to Rule 457(p) under the Securities Act, unused filing fees of $12,450.00 have already
been paid with respect to unsold securities that were previously registered pursuant
to a registration statement of Form S-3 (File No. 333-222766) filed on January 29, 2018
and withdrawn on July 10, 2019, which is being offset against the registration fee due
for this Registration Statement.
|
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item
1. Plan Information.
The
documents containing the information specified in Item 1 and Item 2 of Part I of Form S-8 will be delivered to participants as
specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Commission and the instructions
to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424 under the Securities Act.
Item
2. Registrant Information and Employee Plan Annual Information.
Coffee
Holding Co., Inc. (the “Company”) will furnish without charge to each person to whom the prospectus is delivered,
upon the written or oral request of such person, a copy of any and all of the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II hereof, other than exhibits to such documents (unless such exhibits are specifically incorporated
by reference in such documents that are incorporated), and the other documents required to be delivered to eligible participants
in the Plan pursuant to Rule 428(b) under the Securities Act. Those documents are incorporated by reference in the Section 10(a)
prospectus. Requests should be directed to:
Coffee
Holding Co., Inc.
3475
Victory Blvd.
Staten
Island, NY 10314
Attention:
Chief Financial Officer
Telephone:
718 832 0800
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents are incorporated herein by reference:
(a)
The Registrant’s Annual Report for the fiscal year ended October 31, 2018, filed under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), with the Securities and Exchange Commission (the “Commission”) on January
29, 2019.
(b)
All reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since January 29, 2019.
(c)
The description of the Registrant’s Common Stock contained in the Registration Statement on Form SB-2, as originally filed
with the Commission on June 24, 2004, including any amendment or report filed for the purpose of amending such description.
In
addition, all documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Exchange Act, prior to the filing of a post-effective amendment to this Registration Statement 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 the filing of such documents.
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 such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of
this Registration Statement.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
Neither
the Registrant’s articles of incorporation nor bylaws prevent the Registrant from indemnifying its officers, directors and
agents to the extent permitted under the Nevada Revised Statute (“NRS”). NRS Section 78.7502, provides that a corporation
shall indemnify any director, officer, employee or agent of a corporation against expenses, including attorneys’ fees, actually
and reasonably incurred by him in connection with any defense to the extent that a director, officer, employee or agent of a corporation
has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to Section 78.7502(1) or
78.7502(2), or in defense of any claim, issue or matter therein. NRS 78.7502(1) provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, except an action by or in the right of the corporation, by reason of
the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise,
against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with the action, suit or proceeding if he: (a) is not liable pursuant to NRS 78.138; or (b) acted in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
NRS
Section 78.7502(2) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust
or other enterprise against expenses, including amounts paid in settlement and attorneys’ fees actually and reasonably incurred
by him in connection with the defense or settlement of the action or suit if he: (a) is not liable pursuant to NRS 78.138; or
(b) acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation.
Item
7. Exemption from Registration Claimed
Not
Applicable.
Item
8. Exhibits.
For
a list of exhibits, see the Exhibit Index in this Registration Statement, which is incorporated by reference.
Item
9. Undertakings.
(a)
The 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 this registration statement (or the most
recent post-effective amendment hereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in this Registration Statement;
(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 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 Securities Exchange Act of 1934 that are incorporated by reference into 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 initial bona fide offering thereof.
(4)
That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant
pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if
the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
| |
(i) |
Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant
to Rule 424; |
| |
|
|
| |
(ii) |
Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant; |
| |
|
|
| |
(iii) |
The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned registrant; and |
| |
|
|
| |
(iv) |
Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(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 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 of 1933 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 such 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 of 1933
and will be governed by the final adjudication of such issue.
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 this Registration Statement and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of Staten Island, State of New York, on this 6th
day of August, 2019.
| |
COFFEE
HOLDING CO., INC. |
| |
|
|
| |
By: |
/s/
Andrew Gordon |
| |
Name: |
Andrew
Gordon |
| |
Title: |
President,
Chief Executive Officer |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Andrew Gordon
and David Gordon, and each of them, individually, as his or her true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him or her and in his or her name, place and stead in any and all capacities, in connection
with this Registration Statement, including to sign in the name and on behalf of the undersigned, this Registration Statement
and any and all amendments thereto, including post-effective amendments and registrations filed pursuant to Rule 462 under the
U.S. Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with
the U.S. Securities and Exchange Commission, granting unto such attorneys-in-fact and agents 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 either of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated:
Name
|
|
Title
|
|
Date
|
| |
|
|
|
|
| /s/
Andrew Gordon |
|
President,
Chief Executive Officer, Chief Financial Officer, Treasurer and Director |
|
|
| Andrew
Gordon |
|
(principal
executive officer and principal financial and accounting officer) |
|
August
6, 2019 |
| |
|
|
|
|
| /s/
David Gordon |
|
Executive
Vice President—Operations, Secretary |
|
|
| David
Gordon |
|
and Director |
|
August
6, 2019 |
| |
|
|
|
|
| |
|
|
|
|
| /s/
Gerard DeCapua |
|
Director |
|
August
6, 2019 |
| Gerard
DeCapua |
|
|
|
|
| |
|
|
|
|
| |
|
|
|
|
| /s/
Daniel Dwyer |
|
Director |
|
August
6, 2019 |
| Daniel
Dwyer |
|
|
|
|
| |
|
|
|
|
| |
|
|
|
|
| /s/
Barry Knepper |
|
Director |
|
August
6, 2019 |
| Barry
Knepper |
|
|
|
|
| |
|
|
|
|
| |
|
|
|
|
| /s/
John Rotelli |
|
Director |
|
August
6, 2019 |
| John
Rotelli |
|
|
|
|
| |
|
|
|
|
| |
|
|
|
|
| /s/
George F. Thomas |
|
Director |
|
August
6, 2019 |
| George
F. Thomas |
|
|
|
|
EXHIBIT
INDEX
*
Filed Herewith
