As filed with the Securities and Exchange Commission on January 10, 2018
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
GlyEco, Inc.
(Exact name of registrant as specified in its charter)
| Nevada | 45-4030261 | |
| (State or other jurisdiction of | (I.R.S. Employer | |
| incorporation or organization) | Identification Number) |
230 Gill Way
Rock Hill, South Carolina 29730
(866) 960-1539
(Address, including zip code, and telephone number, including area code,
of registrant’s principal executive offices)
GlyEco, Inc. 2017 Employee Stock Purchase Plan
(Full Title of Plan)
Ian Rhodes
Chief Executive Officer
230 Gill Way
Rock Hill, SC 29730
(866) 960-1539
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
David Danovitch, Esq.
Robinson Brog Leinwand Greene Genovese & Gluck P.C.
875 Third Avenue, 9th Floor
New York, New York 10022
(212) 603-6300
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”, “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ | ||
| Non-accelerated filer | ☐ (Do not check if a smaller reporting company) |
Smaller reporting company | ☑ | ||
| 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 | Title of Plan | Amount to be Registered (1) | Proposed Maximum Offering Price per Share(2) | Proposed Maximum Aggregate Offering Price(2) | Amount of Registration Fee | |||||||||||||
| Common Stock, par value $0.0001 per share | GlyEco, Inc. 2017 Employee Stock Purchase Plan | 10,000,000 | $ | 0.063 | $ | 630,000 | $ | 78.44 | ||||||||||
| Total | 10,000,000 | $ | 0.063 | $ | 630,000 | $ | 78.44 | |||||||||||
(1) Represents 10,000,000 shares of the common stock, par value $0.0001 per share (the “Common Stock”) of GlyEco, Inc. (the “Company” or the “Registrant”) issuable pursuant to the Company’s 2017 Employee Stock Purchase Plan (the “2017 Plan”). Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Common Stock that become issuable under the 2017 Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of the Common Stock.
(2) Estimated in accordance with Rule 457(c) and Rule 457(h) under the Securities Act, solely for the purpose of calculating the applicable registration fee. The proposed maximum offering price per share of Common Stock represents the average of the high and low prices of the Common Stock as reported on the OTC Pink Sheets Market on January 4, 2018.
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 delivered in accordance with Rule 428(b)(1) of the Securities Act. Such documents are not required to be filed with the U.S. Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents, and the documents incorporated by reference in Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Incorporated by reference in this Registration Statement are the following documents filed by the Company with the Commission pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”):
| (1) | The latest prospectus filed pursuant to Rule 424(b)(3) under the Securities Act that contains audited financial statements for the Company’s latest fiscal year for which such statements have been filed, filed on July 7, 2017. |
| (2) | Annual Report on Form 10-K for the fiscal year ended December 31, 2016, filed on April 6, 2017. |
| (3) | Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2017, filed on May 16, 2017, Quarterly report on Form 10-Q for the fiscal quarter ended June 30, 2017, filed on August 14, 2017 and Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2017, filed on November 14, 2017. |
| (4) | Current Reports on Form 8-K or Form 8-K/A filed on January 5, 2017, April 4, 2017, April 17, 2017, May 2, 2017, May 16, 2017, June 19, 2017, July 13, 2017, August 10, 2017 and November 17, 2017. |
| (5) | A description of the Common Stock contained in the Form 10 filed with the Commission on November 23, 1999, and as updated by Form 8-K (File No.: 000-30396) filed by the Company on November 28, 2011 and subsequently amended on January 18, 2012 and February 9, 2012, as well as all other amendments and reports filed for the purpose of updating such description. |
All documents that the Company subsequently files 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 of the shares of Common Stock offered have been sold or which deregisters all of such shares 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; except that any portion of any Annual Report on Form 10-K or Quarterly Report on Form 10-Q of the Company or document or Current Report on Form 8-K furnished under Items 2.02 or 7.01 of Form 8-K or related exhibits furnished pursuant to Item 9.01 of Form 8-K, whether specifically listed above or filed in the future, that is not deemed filed under such provisions shall not be incorporated herein by reference. In accordance with Rule 402 of Regulation S-T, the XBRL related information in Exhibit 10.1 to the Company’s Annual Report on Form 10-K and Quarterly Reports on Form 10-Q will not be deemed to be incorporated by reference into any registration statement or other document filed under the Securities Act, except as will be expressly set forth by specific reference in such filing. For the purposes of this Registration Statement, any statement contained in a document incorporated or deemed to be incorporated by reference herein shall 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 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.
Under Nevada law, a corporation may include in its articles of incorporation a provision that eliminates or limits the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, but no such provision may eliminate or limit the liability of a director (a) for any breach of his or her fiduciary duty as a director, (b) for acts or omissions not in good faith or that involve intentional misconduct, fraud or a knowing violation of law, (c) for conduct violating the Nevada Revised Statutes (“NRS”), or (d) for any transaction from which the director will personally receive a benefit in money, property or services to which the director is not legally entitled.
Section 78.7502 of the NRS provides, in general, 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 the person 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 the person in connection with the action, suit or proceeding if the person acted in good faith and in a manner which he or she 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 the conduct was unlawful.
NRS Section 78.7502 also provides, in general, 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 the person 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 the person in connection with the defense or settlement of the action or suit if the person acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation; provided, however, that indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.
Any indemnification pursuant to the above provisions may be made by a corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances. The determination must be made: (a) by such corporation’s stockholders; (b) by such corporation’s board of directors by majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding; (c) if a majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding so orders, by independent legal counsel in a written opinion; or (d) if a quorum consisting of directors who were not parties to the action, suit or proceeding cannot be obtained, by independent legal counsel in a written opinion.
Our articles of incorporation and amended and restated bylaws provide, among other things, that a director or officer of the Company may be indemnified against expenses, liability, and loss (including attorneys’ fees inclusive of any appeal), judgments, fines and amounts paid in settlement reasonably incurred by such person in connection with any claim, action, suit or proceeding, whether civil, criminal, or investigative, to the fullest extent permitted under the NRS, unless it is ultimately determined by a court of competent jurisdiction that such person is not entitled to be indemnified by the Company. Our directors and officers cannot be personally liable for damages for breach of fiduciary duty, except (a) for acts of omissions involving intentional misconduct, fraud, or knowing violation of law, or (b) the payment of distributions in violation of Section 78.300 of the NRS.
Insofar as indemnification for liabilities arising under the Securities Act may be provided for directors, officers, employees, agents or persons controlling an issuer pursuant to the foregoing provisions, the opinion of the Commission is that such indemnification is against public policy as expressed in the Securities Act, and is therefore unenforceable. In the event that a claim for indemnification by such director, officer or controlling person of us 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 offered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
| Exhibit Number |
Exhibit Title | |
| 5.1 | Opinion of Robinson Brog Leinwand Greene Genovese & Gluck P.C. | |
| 23.1 | Consent of KMJ Corbin & Company LLP | |
| 23.2 | Consent of Robinson Brog Leinwand Greene Genovese & Gluck P.C. (Reference is made to Exhibit 5.1). | |
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 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 the 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;
(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; 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 periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the 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; 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.
(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 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 any 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 of whether or not 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, as amended, 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, at Rock Hill, South Carolina on the 10th day of January, 2018.
GLYECO, Inc.
By: /s/ Ian Rhodes
Ian Rhodes
Chief Executive Officer
(Principal Executive Officer)
By: /s/ Brian Gelman
Brian Gelman
Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, 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.
| Date: January 10, 2018 | By: | /s/ Ian Rhodes |
| Ian Rhodes | ||
Chief Executive Officer and Director (Principal Executive Officer) | ||
| Date: January 10, 2018 | By: | /s/ Brian Gelman |
| Brian Gelman | ||
Chief Financial Officer (Principal Financial Officer and Accounting Officer) | ||
| Date: January 10, 2018 | By: | /s/ Dwight Mamanteo |
Dwight Mamanteo Chairman of the Board | ||
| Date: January 10, 2018 | By: | /s/ David Ide |
| David Ide | ||
| Director | ||
| Date: January 10, 2018 | By: | /s/ Scott Nussbaum |
| Scott Nussbaum | ||
| Director | ||
| Date: January 10, 2018 | By: | /s/ Scott Krinsky |
| Scott Krinsky | ||
| Director |
| Date: January 10, 2018 | By: | /s/ Charles Trapp |
| Charles Trapp | ||
| Director |
| Date: January 10, 2018 | By: | /s/ Frank Kneller |
| Frank Kneller | ||
| Director |
EXHIBIT INDEX
| Exhibit Number |
Exhibit Title | ||
| 5.1 | Opinion of Robinson Brog Leinwand Greene Genovese & Gluck P.C. | ||
| 23.1 | Consent of KMJ Corbin & Company LLP | ||
| 23.2 | Consent of Robinson Brog Leinwand Greene Genovese & Gluck P.C. (Reference is made to Exhibit 5.1). | ||
Exhibit 5.1
ROBINSON BROG LEINWAND GREENE GENOVESE & GLUCK P.C.
875 THIRD AVENUE
NEW YORK, NEW YORK 10022-0123
(212) 603-6300
FAX (212) 956-2164
January 10, 2018
GlyEco, Inc.
230 Gill Way
Rock Hill, South Carolina 29730
Re: Shares to be registered on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to GlyEco, Inc., a Nevada corporation (the “Company”), in connection with a Registration Statement (as amended from time-to-time, referred to as the “Registration Statement”) on Form S-8 filed by the Company on January 10, 2018 under the Securities Act of 1933, as amended (the “Act”) with the U.S. Securities and Exchange Commission (the “Commission”). The Registration Statement relates to the registration of 10,000,000 shares of the Company’s common stock, par value $0.0001 per share (the “Shares”), reserved and available for grant and issuance pursuant to the GlyEco, Inc. 2017 Employee Stock Purchase Plan (the “2017 Plan”).
In rendering the opinion hereinafter expressed, we have made such legal and factual examinations and inquiries, including an examination of originals or copies certified or otherwise identified to our satisfaction as being true reproductions of originals, of all such documents, records, agreements and other instruments, including the Registration Statement, the 2017 Plan, the articles of incorporation of the Company, the amended and restated bylaws of the Company and the corporate minutes of the Company, as we have deemed necessary and appropriate for the purpose of this opinion.
Based upon the foregoing, and having regard to legal considerations and other information that we deem relevant, we are of the opinion that the Shares have been duly authorized and, when and to the extent the Shares are issued and paid for in accordance with the 2017 Plan, such Shares will be validly issued, fully paid and non-assessable.
We express no opinion herein as to the laws of any state or jurisdiction other than the federal laws of the United States, the laws of the State of New York and the Nevada Revised Statutes of the State of Nevada.
We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement. In giving the foregoing 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 promulgated thereunder.
| Very truly yours, | |
| /s/ Robinson Brog Leinwand Greene Genovese & Gluck P.C. | |
| Robinson Brog Leinwand Greene Genovese & Gluck P.C. |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated April 6, 2017 (which includes an explanatory paragraph regarding GlyEco, Inc.’s ability to continue as a going concern), relating to the consolidated financial statements of GlyEco, Inc. and subsidiaries as of December 31, 2016 and 2015 and for the years then ended, appearing in the Annual Report on Form 10-K of GlyEco, Inc. for the year ended December 31, 2016.
/s/ KMJ Corbin & Company LLP
Costa Mesa, California
January 10, 2018