chuc_s8jan2021
As filed with the Securities and Exchange Commission on January 15,
2021
Registration
No. 333- _______
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CHARLIE’S HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
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Nevada
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84-1575085
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(State
or Other Jurisdiction of Incorporation or
Organization)
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(IRS
Employer Identification Number)
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1007 Brioso Drive
Costa Mesa, CA 92627
(Address
of Principal Executive Offices)
Charlie’s Holdings, Inc. 2019 Omnibus Equity Incentive
Plan
True Drinks Holdings, Inc. 2013 Stock Incentive Plan
(Full
title of the plan)
Brandon Stump
Chief Executive Officer
Charlie’s Holdings, Inc.
1007 Brioso Drive
Costa Mesa, CA 92627
(949) 531-6855
(Name,
address including zip code, and telephone number, including area
code, of agent for service)
Copies of all communications to:
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Daniel W. Rumsey, Esq.
Jessica R. Sudweeks, Esq.
Disclosure Law Group,
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a Professional Corporation
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655 West Broadway, Suite 870
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San Diego, California 92101
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Tel: (619) 272-7050
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Fax: (619) 330-2101
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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.
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Large
accelerated filer [ ]
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Accelerated
filer [ ]
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Non-accelerated
filer [ ]
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Smaller
reporting company [X]
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Emerging
growth company [ ]
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(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 Section 7(a)(2)(B) of the Securities Act.
[ ]
CALCULATION OF REGISTRATION FEE
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Title
of Securities to be Registered
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Amount
to be Registered(1)
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Proposed
Maximum Offering Price per Share(2)
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Proposed
Maximum Aggregate Offering Price(2)
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Amount
of Registration Fee
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Common Stock,
$0.001 par value per share, issuable pursuant to the True Drinks
Holdings, Inc. 2013 Stock Incentive Plan
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100,000,000
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$0.005
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$500,000.00
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$54.55
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Common Stock,
$0.001 par value per share, issuable pursuant to the
Charlie’s Holdings, Inc. 2019 Omnibus Equity Incentive
Plan
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1,107,254,205
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$0.005
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$5,536,271.03
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$604.01
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TOTAL
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1,207,254,205
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$6,036,271.03
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$658.56
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(1)
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In
accordance with Rule 416 under the Securities Act of 1933, as
amended, this registration statement shall also be deemed to cover
any additional securities that may from time to time be offered or
issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
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(2)
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Estimated
solely for the purpose of calculating the amount of the
registration fee pursuant to Rules 457(h) under the Securities
Act of 1933, as amended, based on the average of the bid and asked
price of the Registrant’s of common stock of the Registrant
on January 10, 2021.
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EXPLANATORY NOTE
This Registration
Statement on Form S-8 (this “Registration
Statement”) is filed by
Charlie’s Holdings, Inc., formerly True Drinks Holdings, Inc.
(the “Registrant”),
to register a total of 1,207,254,205 shares of its common stock,
$0.001 par value per share (“Common
Stock”), of which up
to 100,000,000 additional shares of Common Stock may be issued
pursuant to the True Drinks Holdings, Inc. 2013 Stock Incentive
Plan (the “2013
Plan”), and
1,107,254,205 shares of Common Stock may be issued pursuant to the
Charlie’s Holdings, Inc. 2019 Omnibus Equity Incentive Plan
(the “2019
Plan” and, together
with the 2013 Plan, the “Plans”).
The Registrant
previously registered shares available for issuance under the 2013
Plan on a registration statement on Form S-8 filed with the
Securities and Exchange Commission on September 14, 2015
(Registration No. 333-206926) (the “Prior
Registration Statement”). Pursuant to
General Instruction E to Form S-8, the contents of the Prior
Registration Statement relating to the 2013 Plan, and all periodic
reports filed by the Registrant after the Prior Registration
Statement to maintain current information about the Registrant, are
hereby incorporated by reference herein.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
The documents
containing the information specified in Part I of Form S-8 will be
sent or given to each participant in the Plan as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the
“Securities
Act”). These
documents and the documents incorporated by reference herein
pursuant to Item 3 of Part II hereof, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the
Securities Act. Such documents are not filed as part of this
Registration Statement in accordance with the Note to Part I of the
Form S-8 Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation
of Documents by Reference
The following
documents, which have been previously filed by the Registrant with
the Securities and Exchange Commission (the
“SEC”),
are hereby incorporated by reference in this Registration
Statement:
(a)
The
Registrant’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2019, as filed with the SEC on April 14,
2020;
(b)
The
Registrant’s Quarterly Report on Form 10-Q for the quarters
ended March 31, 2020, June 30, 2020 and September 30, 2020, as
filed with the SEC on May 15, 2020, August 14, 2020 and November
13, 2020, respectively; and
(c)
The
Registrant’s Current Reports on Form 8-K, as filed with the
SEC on February 19, 2020, April 14, 2020, May 8, 2020, September 1,
2020, October 2, 2020, November 2, 2020, November 3, 2020, December
15, 2020, as amended on December 16, 2020; and
(d)
The
description of the Registrant’s Common Stock set forth under
the caption “Description of Our Securities” in the
prospectus forming a part of the Registrant’s Registration
Statement on Form S-1 (File No. 333-217340), originally filed with
the SEC on April 17, 2017, as amended from time to
time.
Until such time that a post-effective amendment to
this Registration Statement has been filed which indicates that all
securities offered hereby have been sold or which deregisters all
securities remaining unsold at the time of such amendment, all
documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
as amended (the “Exchange
Act”), 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. Any
statement contained herein or 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
subsequently filed document which is also 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
Our
Articles of Incorporation, as amended and restated, provide to the
fullest extent permitted by the Nevada Revised Statutes, that
our directors or officers shall not be personally liable to us
or our stockholders for damages for breach of such
director’s or officer’s fiduciary duty. The effect of
this provision of our Articles of Incorporation is to eliminate our
rights and our stockholders’ rights (through
stockholders’ derivative suits on behalf of our company) to
recover damages against a director or officer for breach of the
fiduciary duty of care as a director or officer (including breaches
resulting from negligent or grossly negligent behavior), except
under certain situations defined by statute. We believe that the
indemnification provisions in our Articles of Incorporation are
necessary to attract and retain qualified persons as directors and
officers.
Our
Bylaws also provide that the Board of Directors may also authorize
us to indemnify our employees or agents, and to advance the
reasonable expenses of such persons, to the same extent, following
the same determinations, and upon the same conditions as are
required for the indemnification of, and advancement of, expenses
to our directors and officers. As of the date of this Registration
Statement, the Board of Directors has not extended indemnification
rights to persons other than directors and officers.
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, or persons controlling us
pursuant to the foregoing provisions, or otherwise, we have 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.
Item 7.
Exemption from Registration Claimed
Not
applicable.
Item 8.
Exhibits
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Exhibit No.
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Document Description
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Incorporation by Reference
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Opinion
and Consent of Disclosure Law Group
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Filed
herewith.
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Consent
of Baker Tilly US,
LLP
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Filed
herewith.
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Consent
of Disclosure Law Group (included as part of Exhibit
5.1)
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True
Drinks Holdings, Inc. 2013 Stock Incentive Plan
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Incorporated by
reference from Exhibit 10.17 to the Annual Report on Form 10-K,
filed March 31, 2014.
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Charlie’s
Holdings, Inc. 2019 Omnibus Equity Incentive Plan
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Incorporated by
reference from Appendix B to the Definitive Information Statement
on Schedule 14C, filed May 28, 2019.
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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; and
(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 the Registration Statement; and
(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; and
(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;
and
(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.
Provided, however, that 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
reports filed with or furnished to the SEC by the Company pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act that
are incorporated by reference in the Registration
Statement.
(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 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 the city of Costa Mesa,
State of California, on January 15, 2021.
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Charlie’s Holdings, Inc.
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By: /s/
Brandon Stump
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Name:
Brandon Stump
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Title:
Chief Executive Officer and Chair of Baord
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KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Brandon Stump and David
Allen, and each one of them, 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 their name,
place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and to sign any registration statement for
the same offering covered by this registration statement that is to
be effective on filing pursuant to Rule 462(b) under the Securities
Act of 1933, as amended, and all post-effective amendments thereto,
and to file the same, with all exhibits 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 requisite and necessary to be
done in connection therewith, 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 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.
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Signature
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Title
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Date
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/s/ Brandon
Stump
Brandon
Stump
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Chief
Executive Officer and Director
(Principal Executive Officer)
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January
15, 2021
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/s/ David
Allen
David
Allen
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Chief
Financial Officer and Secretary
(Principal Financial Officer and Principal Accounting
Officer)
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January
15, 2021
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/s/ Ryan
Stump
Ryan
Stump
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Chief
Operating Officer and Director
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January
15, 2021
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/s/ Scot
Cohen
Scot
Cohen
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Director
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January
15, 2021
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/s/ Jeffrey
Fox
Jeffrey
Fox
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Director
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January
15, 2021
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/s/ Keith
Stump
Keith
Stump
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Director
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January
15, 2021
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