As filed with the Securities and Exchange Commission on June 18, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
InfoSonics Corporation
(Exact name of registrant as specified in its charter)
Maryland | 33-0599368 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) |
3636 Nobel Drive, Suite 325
San Diego, CA 92122
(Address of principal executive offices, including zip code)
INFOSONICS CORPORATION 2015 EQUITY INCENTIVE PLAN
(Full title of the plan)
Joseph Ram
Chief Executive Officer
InfoSonics Corporation
3636 Nobel Drive, Suite 325
San Diego, CA 92122
(858) 373-1600
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Vernon A. LoForti Vice President, Chief Financial Officer & Secretary InfoSonics Corporation 3636 Nobel Drive, Suite 325 San Diego, CA 92122 (858) 373-1600 |
David J. Katz Perkins Coie LLP 1888 Century Park East Suite 1700 Los Angeles, CA 90067 (310) 788-9900 |
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. (Check one):
Large accelerated filer | ¨ | Accelerated filer | ¨ | |||
Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company | 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 $0.001 per share, issuable under the InfoSonics Corporation 2015 Equity Incentive Plan |
1,205,749 | $2.87(2) | $3,460,500 (2) | $403 | ||||
| ||||||||
|
(1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the Securities Act), this registration statement also covers an indeterminate number of additional shares that may be necessary to adjust the number of shares issuable pursuant to the InfoSonics Corporation 2015 Equity Incentive Plan as the result of any future stock split, stock dividend or similar adjustment of the Registrants outstanding common stock. |
(2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and Rule 457(h) under the Securities Act. The proposed maximum offering price per share is estimated to be $2.87 based on the average of the high sales price ($2.93 per share) and the low sales price ($2.81 per share) for the Registrants common stock as reported on The Nasdaq Capital Market on June 16, 2015. |
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. | Incorporation of Documents by Reference. |
The following documents filed with the Securities and Exchange Commission (the Commission) (File No. 001-32217) are hereby incorporated by reference in this Registration Statement:
(a) The Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2014, filed on March 10, 2015, which contains audited financial statements for the most recent fiscal year for which such statements have been filed;
(b) The Registrants Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2015, filed on May 8, 2015;
(c) The Registrants Current Reports on Form 8-K, filed on May 28, 2015 and June 10, 2015; and
(d) The description of the Registrants common stock contained in the Registration Statement on Form 8-A, filed on August 2, 2006, under Section 12(b) of the Securities Exchange Act of 1934, as amended (the Exchange Act), including any amendment or report filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof, and prior to the filing of a post-effective amendment which indicates that the securities offered hereby have been sold or which deregisters the securities covered hereby then remaining unsold, shall also be deemed to be incorporated by reference into this Registration Statement and to be a part hereof commencing on the respective dates on which such documents are filed; provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the Commission will not be deemed incorporated by reference into this Registration Statement.
Any statement contained in this Registration Statement or in a document incorporated or deemed to be incorporated by reference in this Registration Statement will be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this Registration Statement modifies or supersedes that statement. Any statement so modified or superseded will 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. |
None.
Item 6. | Indemnification of Directors and Officers. |
The Registrants articles of incorporation limit the liability of its directors and officers to the fullest extent permitted by the Maryland General Corporation Law, as amended from time to time (the MGCL), and, together with the Registrants bylaws, as amended, requires the Registrant to indemnify its present and former directors and officers and any individual who, while a director or officer and at the request of the Registrant, serves or has served another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise as a director, officer, partner or trustee, against liabilities to the fullest extent allowed under Maryland law. The Registrants articles of incorporation and bylaws permit the Registrant, with the approval of its board of directors, to indemnify and advance or reimburse the expenses of any director, officer, employee or agent of the Registrant or of any predecessor, to the maximum extent permitted by the MGCL.
The MGCL requires a corporation (unless its articles of incorporation provide otherwise, which the Registrants do not) to indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he or she is made a party by reason of his or her service in that capacity. The
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MGCL permits a corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made a party by reason of their service in those or other capacities unless it is established that:
| an act or omission of the director or officer was material to the matter giving rise to the proceeding and: |
(1) | was committed in bad faith; or |
(2) | was the result of active and deliberate dishonesty; |
| the director or officer actually received an improper personal benefit in money, property or services; or |
| in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. |
However, under the MGCL, a Maryland corporation may not indemnify for an adverse judgment in a suit by or in the right of the corporation or for a judgment of liability on the basis that personal benefit was improperly received, unless in either case a court orders indemnification, and then only for expenses. In addition, the MGCL permits a corporation to advance reasonable expenses to a director or officer upon the corporations receipt of:
| a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation; and |
| a written undertaking by him or her or on his or her behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the standard of conduct was not met. |
The Registrants bylaws, as amended, obligate the Registrant, to the fullest extent permitted by Maryland law in effect from time to time, without requiring a preliminary determination of the ultimate entitlement to indemnification, to pay or reimburse reasonable expenses in advance of final disposition of a proceeding to:
| any present or former director or officer who is made a party to the proceeding by reason of his or her service in that capacity; or |
| make any individual who, while a director or officer and at the Registrants request, serves or has served another corporation, partnership, joint venture, trust, employee benefit plan or any other enterprise as a director, officer, partner or trustee and who is made a party to the proceeding by reason of his or her service in that capacity. |
Insofar as the foregoing provisions permit indemnification of directors, officers or persons controlling the Registrant for liability arising under the Securities Act, the Registrant has been informed that, in the opinion of the Commission, this indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
The MGCL permits a Maryland corporation to include in its articles of incorporation a provision limiting the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from actual receipt of an improper benefit or profit in money, property or services or active and deliberate dishonesty established by a final judgment as being material to the cause of action. The Registrants articles of incorporation contain such a provision which eliminates such liability to the maximum extent permitted by Maryland law.
The foregoing summaries are necessarily subject to the complete text of the MGCL, the Registrants articles of incorporation and bylaws, as amended, and the arrangements referred to above and are qualified in their entirety by reference thereto.
The Registrant maintains a directors and officers liability insurance policy. The policy insures directors and officers against unindemnified losses arising from certain wrongful acts in their capacities as directors and officers and reimburses the Registrant for those losses for which the Registrant lawfully indemnified the directors and officers. The policy contains various exclusions.
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Item 7. | Exemption from Registration Claimed. |
Not applicable.
Item 8. | Exhibits. |
Exhibit |
Description of Document | |
5.1+ | Opinion of Perkins Coie LLP regarding legality of the common stock being registered | |
23.1+ | Consent of SingerLewak LLP, independent registered public accounting firm | |
23.2+ | Consent of Perkins Coie LLP (included in opinion filed as Exhibit 5.1) | |
24.1+ | Power of Attorney (see signature page) | |
99.1* | InfoSonics Corporation 2015 Equity Incentive Plan (Filed as Appendix A to InfoSonics Corporations Definitive Proxy Statement on Schedule 14A filed with the Commission on April 28, 2015) (Commission File No. 001-32217) |
+ | Filed herewith |
* | 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:
(a) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(b) 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; and
(c) 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 (1)(a) and (1)(b) 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 Commission 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 Registrants annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans 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
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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 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.
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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 San Diego, State of California, on June 18, 2015.
INFOSONICS CORPORATION | ||
By: | /s/ JOSEPH RAM | |
Name: | Joseph Ram | |
Title: | President and Chief Executive Officer |
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Joseph Ram and Vernon A. LoForti, or either of them, as his attorneys-in-fact, with the power of substitution, for him in any and all capacities, to sign any amendments to this Registration Statement, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorneys-in-fact, or their substitute or substitutes, may 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 indicated below on June 18, 2015.
Signature |
Title | |
/S/ JOSEPH RAM Joseph Ram |
President and Chief Executive Officer and Director (Principal Executive Officer) | |
/S/ VERNON A. LOFORTI Vernon A. LoForti |
Vice President, Chief Financial Officer and Secretary (Principal Financial and Accounting Officer) | |
/S/ RANDALL P. MARX Randall P. Marx |
Director | |
/S/ ROBERT S. PICOW Robert S. Picow |
Director | |
/S/ KIRK A. WALDRON Kirk A. Waldron |
Director |
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EXHIBIT INDEX
Exhibit |
Description of Document | |
5.1+ | Opinion of Perkins Coie LLP regarding legality of the common stock being registered | |
23.1+ | Consent of SingerLewak LLP, independent registered public accounting firm | |
23.2+ | Consent of Perkins Coie LLP (included in opinion filed as Exhibit 5.1) | |
24.1+ | Power of Attorney (see signature page) | |
99.1* | InfoSonics Corporation 2015 Equity Incentive Plan (Filed as Appendix A to InfoSonics Corporations Definitive Proxy Statement on Schedule 14A filed with the Commission on April 28, 2015) (Commission File No. 001-32217) |
+ | Filed herewith |
* | Incorporated herein by reference |
Exhibit 5.1
[Perkins Coie LLP Letterhead]
June 18, 2015
InfoSonics Corporation
3636 Nobel Drive, Suite 325
San Diego, CA 92122
Re: | Registration Statement on Form S-8 of Shares of Common Stock, par value $0.001 per share, of InfoSonics Corporation |
Ladies and Gentlemen:
We have acted as counsel to you in connection with the preparation of a Registration Statement on Form S-8 (the Registration Statement) under the Securities Act of 1933, as amended (the Act), which you are filing with the Securities and Exchange Commission (the Commission) with respect to 1,205,749 shares of common stock, par value $0.001 per share (the Shares), of InfoSonics Corporation (InfoSonics) that may be issued under the InfoSonics Corporation 2015 Equity Incentive Plan (the Plan).
We have examined the Registration Statement and such documents and records of InfoSonics as we have deemed necessary for the purposes of this opinion. In giving this opinion, we are assuming the authenticity of all instruments presented to us as originals, the conformity with originals of all instruments presented to us as copies and the genuineness of all signatures.
Our opinion set forth below is limited to the federal laws of the United States and the laws of the State of Maryland.
Based upon and subject to the foregoing, we are of the opinion that any original issuance Shares that may be issued pursuant to the Plan, upon the registration by its registrar of such Shares and the issuance thereof by InfoSonics in accordance with the terms of the Plan, and the receipt of consideration therefor in accordance with the terms of the Plan, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ PERKINS COIE LLP
Exhibit 23.1
Consent of SingerLewak LLP, Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement on Form S-8 of InfoSonics Corporation and subsidiaries (collectively, the Company) of our reports dated March 10, 2015, relating to our audits of the consolidated financial statements, included in the Annual Report on Form 10-K of the Company for the year ended December 31, 2014.
/s/ SingerLewak LLP
Irvine, California
June 18, 2015