As
filed with the Securities and Exchange Commission on November 10, 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
BALLANTYNE
STRONG, INC.
(Exact
name of registrant as specified in its charter)
| DELAWARE |
|
47-0587703 |
(State
or other jurisdiction of
incorporation or organization |
|
(IRS
Employer
Identification No.) |
13710
FNB Parkway, Suite 400, Omaha, NE 68154
(Address
of Principal Executive Offices) (ZIP Code)
BALLANTYNE
STRONG, INC., 2010 LONG-TERM INCENTIVE PLAN (as amended and restated)
(Full
title of the plan)
NATHAN
D. LEGBAND
SENIOR
VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND TREASURER
BALLANTYNE
STRONG, INC.
13710
FNB PARKWAY, SUITE 400
OMAHA,
NE 68154
(Name
and address of agent for service)
(402)
453-4444
(Telephone
number, including area code, of agent for service)
Copy
to:
ALLISON
M. HARDY
STINSON
LEONARD STREET LLP
1299
FARNAM STREET, SUITE 1500
OMAHA,
NE 68102
(402)
930-1720
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.
| Large
accelerated filer |
[ ] |
|
Accelerated
filer |
[X] |
| |
|
|
|
|
| Non-accelerated
filer |
[ ] |
(Do not check
if a smaller reporting company) |
Smaller reporting
company |
[ ] |
CALCULATION
OF REGISTRATION FEE
| | |
| | |
| | |
| | |
| |
Title of
securities
to be registered | |
Amount to be registered | | |
Proposed maximum offering price
per share (1)(2) | | |
Proposed
maximum
aggregate
offering price(2) | | |
Amount of registration
fee (2) | |
| Common Stock | |
| 1,000,000 | | |
$ | 4.45 | | |
$ | 4,450,000.00 | | |
$ | 448.12 | |
| (1)
|
Pursuant
to Rule 416(c) under the Securities Act of 1933, this registration statement also covers an indeterminate amount of interests
to be offered or sold pursuant to the employee benefit plan described herein. |
| |
|
| (2) |
Pursuant to Rule
457(h) of the Securities Act of 1933, and solely for the purposes of calculating the amount of the registration fee, the proposed
maximum offering price is based on the average high and low prices reported on the NYSE MKT LLC on November 5, 2015. |
EXPLANATORY
NOTE
This
Registration Statement on Form S-8 is filed pursuant to General Instruction E by Ballantyne Strong, Inc. (the “Company”
or the “Registrant”) to register an additional 1,000,000 shares of the Registrant’s common stock, par value
$0.01 per share (the “Common Stock”), which are available for issuance under the Ballantyne Strong, Inc. 2010 Long-Term
Incentive Plan (as amended and restated) (the “Plan”).
The
Registrant currently has an effective registration statement filed on Form S-8 relating to the Plan (File No. 333-169115), filed
August 30, 2010, which registration statement is hereby incorporated by reference, including all documents incorporated by reference
or deemed incorporated by reference thereto.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents filed or to be filed (other than portions of those documents furnished or otherwise not deemed filed) by the
Registrant with the Securities and Exchange Commission (the “Commission”) are incorporated into this Registration
Statement by reference, as of their respective dates:
| |
(1)
|
The
Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2014, filed on March 6, 2015; |
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|
|
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(2) |
All other reports
filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Registrant’s
Annual Report referred to in (a) above; and |
| |
|
|
| |
(3) |
The description
of the Company’s Common Stock contained in the Company’s Registration Statement on Form 8-A (File No. 1-13906) filed
under the Exchange Act, including any amendment or report filed for the purpose of updating such description. |
All
documents subsequently filed by the Company pursuant to Sections 13(a), 13(c) 14, and 15(d) of the Exchange Act subsequent to
the date of this registration statement and prior to the filing of a post-effective amendment to this registration statement which
indicates that all securities then remaining unsold shall be deregistered, shall be deemed to be incorporated by reference in
the registration statement and to be a part thereof from the date of the filing of such documents.
For
purposes of this registration statement and the related prospectus, any statement contained in a document incorporated or deemed
to be incorporated by reference shall be deemed to be modified or superseded to the extent that a statement contained herein or
in a subsequently filed document which also is or is deemed to be incorporated herein by reference modifies or replaces such statement.
Any statement so modified shall not be deemed in its unmodified form to constitute part of this registration statement or the
related prospectus.
Item
6. Indemnification of Directors and Officers.
Section
145(a) of the Delaware General Corporation Law (the “DGCL”) provides in relevant part that “[a] corporation
shall have power to 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 (other than 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 such action, suit or proceeding if
the person acted in good faith and in a manner the person 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 person’s
conduct was unlawful.” With respect to derivative actions, Section 145(b) of the DGCL provides in relevant part that “[a]
corporation shall have power to 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
.. . . [person’s service in one of the capacities specified in the preceding sentence] against expenses (including attorneys’
fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the
person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court
in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view
of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.”
The
Registrant’s Certificate of Incorporation, as amended, provides that a director of the corporation shall not be personally
liable to the corporation or its stockholders for monetary damages for breach of a fiduciary duty as a director, except for liability
(i) for any breach of the director’s duty of loyalty to the corporation or its stockholders; (ii) for acts or omissions
not made in good faith or which involve intentional misconduct or a knowing violation of the law; (iii) under Section 174 of the
DGCL or (iv) for any transaction from which the director derived an improper personal benefit. The Certificate of Incorporation
further provides that if the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability
of directors, then the liability of a director of the Registrant shall be eliminated or limited to the fullest extent permitted
by the DGCL, as so amended.
The
Registrant’s Bylaws, as amended, provide that the Registrant shall indemnify to the fullest extent authorized by law each
person against expense, liability and loss reasonably incurred in connection with any proceeding arising by reason of the fact
that such person is or was a director or an officer of the corporation or was serving at the request of the corporation as a director,
officer, employee or agent or another corporation or of a partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan of the corporation.
Item
8. Exhibits.
The
Exhibits listed on the accompanying Index to Exhibits are filed as part hereof, or incorporated by reference into, this Registration
Statement. (See Exhibit Index below).
SIGNATURES
SIGNATURES
AND POWER OF ATTORNEY
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 Omaha, State of Nebraska, on November 10, 2015.
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BALLANTYNE STRONG, INC. |
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|
|
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By: |
/s/ D. Kyle
Cerminara |
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|
D. Kyle Cerminara |
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|
Executive Chairman |
KNOW
ALL MEN AND WOMEN BY THESE PRESENTS, that each person whose signature appears below hereby severally constitutes and appoints
each of the Registrant’s Executive Chairman and Chief Financial Officer (currently D. Kyle Cerminara and Nathan D. Legband,
respectively) as such person’s true and lawful attorney-in-fact and agent, each acting alone, with full power of substitution
and resubstitution, for and in such person’s name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement and all documents relating thereto, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting
unto such attorneys-in-fact and agents, each acting alone, full power and authority to do and perform each and every act and thing
necessary or advisable to be done in and about the premises, as fully to all intents and purposes as such person might or could
do in person, hereby ratifying and confirming all that such attorneys-in-fact and agents, each acting alone, or such person’s
substitute or substitutes, lawfully 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 and on the dates indicated.
| Signature |
|
Title |
Date |
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|
|
|
| |
|
Senior
Vice President, Chief Financial) |
|
|
/s/
Nathan D. Legband |
|
Officer
and Treasurer (Principal Financial |
November
10, 2015 |
| Nathan D. Legband |
|
Officer and Principal Accounting Officer) |
|
| |
|
|
|
|
/s/
D. Kyle Cerminara |
|
Executive
Chairman of the Board of |
November
10, 2015 |
| D. Kyle Cerminara |
|
Directors (Principal
Executive Officer) |
|
| |
|
|
|
| /s/
Samuel C. Freitag |
|
Director |
November
10, 2015 |
| Samuel C. Freitag |
|
|
|
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|
|
|
| /s/
William J. Gerber |
|
Director |
November
10, 2015 |
William
J. Gerber |
|
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|
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|
|
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| /s/
Charles T. Lanktree |
|
Director |
November
10, 2015 |
| Charles T. Lanktree |
|
|
|
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|
|
|
| /s/
Marc E. LeBaron |
|
Director |
November
10, 2015 |
| Marc E. LeBaron |
|
|
|
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|
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| /s/
Robert J. Roschman |
|
Director |
November
10, 2015 |
| Robert J. Roschman |
|
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|
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|
|
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|
/s/
James C. Shay |
|
Director |
November
10, 2015 |
| James C. Shay |
|
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|
EXHIBIT
INDEX
| Exhibit
Number |
|
Exhibit
Index |
| |
|
|
| 4.1 |
|
Certificate of
Incorporation of Ballantyne of Omaha, Inc. (incorporated by reference to Exhibit 3.1 to the Company Registration Statement
on Form S-8 filed December 7, 2006) |
| |
|
|
| 4.2 |
|
Certificate of
Amendment of Certificate of Incorporation (incorporated by reference to Exhibit 3.1.1 to the Company Registration Statement
on Form S-8 filed December 7, 2006) |
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|
|
| 4.3 |
|
Certificate of
Amendment of Certificate of Incorporation (incorporated by reference to Exhibit 3.1.2 to the Company Registration Statement
on Form S-8 filed December 7, 2006) |
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|
|
| 4.4 |
|
Certificate of
Amendment of Certificate of Incorporation (incorporated by reference to Exhibit 3.1.3 to the Company Registration Statement
on Form S-8 filed December 7, 2006) |
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|
|
| 4.5 |
|
Certificate
of Amendment of Certificate of Incorporation (incorporated by reference to Exhibit 3.1.4 to the Company Quarterly Report on Form
10-Q for the period ended May 31, 2009, filed on August 7, 2009) |
| |
|
|
| 4.6 |
|
Certificate of
Designations for Ballantyne Strong, Inc. Series A Junior Participating Preferred Stock (incorporated by reference to Exhibit
3.1 to the Company Current Report on Form 8-K filed on November 6, 2014) |
| |
|
|
| 4.7 |
|
Certificate of
Elimination of Series A Junior Participating Preferred Stock (incorporated by reference to Exhibit 3.1 to the Company Report
on Form 8-K filed on May 1, 2015) |
| |
|
|
| 4.8 |
|
Ballantyne of
Omaha, Inc. Bylaws (incorporated by reference to Exhibit 3.2 to the Company Annual Report on Form 10-K for the year ended
December 31, 2007, filed on April 1, 2008) |
| |
|
|
| 4.9 |
|
First Amendment
to Bylaws of Ballantyne of Omaha, Inc. (incorporated by reference to Exhibit 3.2.1 to the Company Annual Report on Form 10-K
for the year ended December 31, 2007, filed on April 1, 2008) |
| |
|
|
| 4.10 |
|
Second Amendment
to Bylaws of Ballantyne of Omaha, Inc. (incorporated by reference to Exhibit 3.2.2 to the Company Annual Report on Form 10-K
for the year ended December 31, 2007, filed on April 1, 2008) |
| |
|
|
| 4.11 |
|
Third Amendment
to Bylaws of Ballantyne of Omaha, Inc. (incorporated by reference to Exhibit 3.2.3 to the Company Annual Report on Form 10-K
for the year ended December 31, 2007, filed on April 1, 2008) |
| |
|
|
4.12
|
|
Fourth Amendment
to Bylaws of Ballantyne of Omaha, Inc. (incorporated by reference to Exhibit 3.2.4 to the Company Annual Report on Form 10-K
for the year ended December 31, 2007, filed on April 1, 2008) |
| |
|
|
| 4.13 |
|
Fifth
Amendment to Bylaws of Ballantyne Strong, Inc. dated May 2, 2012 (incorporated by reference
to Exhibit 4.11 to the Company Registration Statement on Form S-8 filed May 16, 2014
(File No. 196019))
|
| 5 |
|
Opinion of Stinson
Leonard Street LLP |
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|
|
| 23.1 |
|
Consent of KPMG
LLP |
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|
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| 23.2 |
|
Consent of Stinson
Leonard Street LLP (included in Exhibit 5) |
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|
|
| 24 |
|
Power of Attorney
(included on the signature page hereto) |
| |
|
|
| 99 |
|
Ballantyne Strong,
Inc., 2010 Long-Term Incentive Plan (as amended and restated) (incorporated by reference to Exhibit 10.1 to the Company Current
Report on Form 8-K filed on May 20, 2014) |
