Securities Registration: Employee Benefit Plan (s-8)
28 Junho 2021 - 11:32AM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on June 25,
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
FITLIFE BRANDS, INC.
(Exact Name of Registrant as Specified in Its
Charter)
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Nevada
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20-3464383
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(State or Other Jurisdiction of Incorporation
or Organization)
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(IRS Employer Identification No.)
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5214 S. 136th Street, Omaha, NE 68137
(Address of Principal Executive Offices)
FitLife Brands, Inc. 2019 Omnibus Incentive Plan
(Full title of
the plan)
Dayton Judd
Chief Executive Officer
Fitlife Brands, Inc.
5214 S. 136th Street
Omaha, NE 68137
(Name and
address of agent for service)
402-333-5260
(Telephone
number, including area code, of agent for service)
Copies to:
Daniel W. Rumsey,
Esq.
Disclosure Law Group,
a Professional Corporation
655 W. Broadway, Suite 870
San Diego, California 92101
(619)
272-7050
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 ☒
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Emerging growth
company ☐
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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
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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
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Amount
of
Registration
Fee
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Common Stock, par value $0.01 per share
(“Common
Stock”), to be issued under the 2019 Omnibus
Incentive Plan
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100,000
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$37.50
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$3,750,000
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$409.13
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(1)
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Pursuant to
Rule 416 (c) under the Securities Act of 1933, as amended (the
"Securities Act"), this
Registration Statement also covers any additional shares of Common
Stock of Fitlife Brands, Inc. (the “Registrant” or the
“Company”) that
may become issuable under the 2019 Omnibus Incentive Plan (the
“Plan”), by
reason of any stock dividend, stock split, recapitalization or
other similar transaction that increases the number of the
outstanding shares of the Registrant’s Common
Stock.
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(2)
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Estimated
pursuant to Rules 457(c) and 457(h) under the Securities Act
solely for the purpose of
calculating the registration fee, based on the average of the high
and low prices of the Registrant’s Common Stock as reported
on the OTCQX tier of the OTC Marketplace on June 24,
2021.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
FitLife Brands,
Inc. (the “Company”) files this Registration
Statement on Form S-8 in connection with the Registrant's 2019
Omnibus Incentive Plan (the “Plan”). The Company will provide
each recipient of a grant under the Plan (the “Recipients”) with documents that
contain information related to the Plan, and other information
including, but not limited to, the disclosure required by Item 1 of
Form S-8, which information is not required to be and is not
being filed as a part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 under
the Securities Act. The foregoing information and the documents
incorporated by reference in response to 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.
A Section 10(a) prospectus will be given to each Recipient who
receives Common Stock covered by this Registration Statement, in
accordance with Rule 428(b)(1) under the Securities
Act.
Item 2. Registrant Information and Employee Plan Annual
Information.
The Company
will provide to each Recipient a written statement advising of the
availability of documents incorporated by reference in Item 3 of
Part II of this Registration Statement (which documents are
incorporated by reference in this Section 10(a) prospectus) and of
documents required to be delivered pursuant to Rule 428(b) under
the Securities Act without charge and upon written or oral request
by contacting the Company at:
FitLife Brands,
Inc.
5214 S. 136th Street
Omaha, Nebraska 68137
(402) 333-5260
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following
documents that have been filed by the Registrant with the
Securities and Exchange Commission (the "SEC") are incorporated herein by
reference:
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Annual Report
on Form 10-K for the fiscal year ended December 31, 2020, as filed
with the SEC on March 26, 2021;
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Quarterly
Report on Form 10-Q for the quarter ended March 31, 2021, as filed
with the SEC on May 14, 2021;
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Current Report
on Form 8-K, as filed with the SEC on February 5,
2021;
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Current Report
on Form 8-K, as filed with the SEC on March 4, 2021;
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Current Report
on Form 8-K, as filed with the SEC on April 13, 2021;
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Current Report
on Form 8-K, as filed with the SEC on May 3, 2021;
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Current Report
on Form 8-K, as filed with the SEC on June 8, 2021;
and
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The description
of the Company’s Common Stock contained in the
Company’s Registration Statement on Form SB-2/A as declared
effective by the Securities and Exchange Commission on December 20,
2006 (SEC File Number 333-128986), including any amendment or
report filed for the purpose of updating such
description.
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All documents
subsequently filed with the Commission by the Registrant pursuant
to Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange
Act of 1934, as amended ("Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities
offered hereunder have been sold or which deregisters all
securities then remaining unsold under this Registration Statement,
shall be deemed to be incorporated by reference in this
Registration Statement and to be 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 other subsequently filed
document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such earlier
statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a
part of this Registration Statement.
The Company
will provide without charge to each person to whom a copy of this
prospectus has been delivered, on written or oral request, a copy
of any or all of the documents incorporated by reference in this
prospectus, other than exhibits to such documents. Written or oral
requests for such copies should be directed to our Corporate Secretary at the
Company.
Item 4. Description of Securities.
The class of
securities to be offered is registered under Section 12 of the
Exchange Act and accordingly, no information under Item 202 of
Regulation S-K is required.
Item 5. Interests of Named Experts and Counsel.
No expert or
counsel named in this Registration Statement as having prepared or
certified any part of this Registration Statement or having given
an opinion upon the validity of the securities being registered or
upon other legal matters in connection with the registration or
offering of the Common Stock was employed on a contingency basis or
had, or is to receive, in connection with the offering, a
substantial interest, directly or indirectly, in the Registrant or
any of its parents or subsidiaries.
Item 6. Indemnification of Directors and
Officers.
As permitted by
Section 78.7502 of the Nevada Revised Statutes (“NRS”), the Articles of
Incorporation, as amended (“Charter”), of the Company
provide that the Company shall indemnify each and every officer and
director to the fullest extent permitted by applicable state law.
Consequently, the directors and officers of the Company generally
will not be personally liable to the Company or the stockholders
for monetary damages unless:
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the
director’s or officer’s act or failure to act
constitutes a breach of his or her fiduciary duties as a director
or officer, and his breach of those duties involves intentional
misconduct, fraud or a knowing violation of law; or
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the director or
officer does not act in good faith and in a manner which he or she
reasonably believes to be in or not opposed to the best interests
of the corporation and, with respect to any criminal action or
proceeding, the director or officer has reasonable cause to believe
his or her conduct was unlawful.
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The
Company’s Amended and Restated Bylaws (the
“Bylaws”)
provide that the Company shall indemnify and hold harmless each
person who shall serve at any time as a director or officer from
and against any and all claims, judgments and liabilities to which
such person shall become subject by reason of having been a
director or officer of the Company, or by reason of any action
alleged to have been taken or omitted to have been taken by him or
her as such director or officer. The Bylaws further provide that
the Company shall reimburse each such person for all legal and
other expenses reasonably incurred in connection with any such
claim or liability; provided, however that no such person shall be
indemnified against, or be reimbursed for, any expense incurred in
connection with any claim or liability arising out of his or her
own negligence or willful misconduct. The right of any person to be
indemnified under the Bylaws is subject to the right of the Board
of Directors, in lieu of such indemnity, to settle any such claim,
action, suit or proceeding at the expense of the Company by the
payment of the amount of such settlement and the costs and expenses
incurred in connection therewith.
The rights
accruing to any person under the provisions of the Company’s
Bylaws do not exclude any other right to which an officer or
director may be entitled, including rights pursuant to the NRS, our
Charter, indemnification agreements, a vote of stockholders or
disinterested directors, or otherwise.
The Company has
entered into, and may in the future enter into, agreements relating
to indemnification with certain of directors and officers.
Generally, these agreements attempt to provide the maximum
protection permitted by law with respect to indemnification.
Indemnification agreements may provide that the Company will
maintain directors’ and officers’ liability insurance
in reasonable amounts from established insurers, subject to certain
limitations. The Company currently maintains directors' and
officers' liability insurance. Indemnification agreements may also
provide for partial indemnification for a portion of expenses
incurred by a director or officer even if the director or officer
is not entitled to indemnification for the total
amount.
In accordance
with permissive provisions in the Company’s Bylaws, we may
maintain insurance on behalf of any person who is a director or
officer against any loss arising from any claim asserted against
him and incurred by him in any such capacity, subject to certain
exclusions.
At present, the
Company is not aware of any pending litigation or proceeding
involving any person who is or was a director, officer, employee or
other agent of the Company or is or was serving at the
Company’s request as a director, officer, employee or agent
of another entity regarding which indemnification is sought, and
the Company not aware of any threatened litigation that may result
in claims for indemnification.
Insofar as
indemnification for liabilities arising under the Securities Act
may be permitted to the Company’s directors, officers and
controlling persons pursuant to the foregoing provisions, or
otherwise, the Company 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 Company 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.
Item 7. Exemption from Registration Claimed.
Not
applicable.
Item 8. Exhibits.
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Exhibit
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Description
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Opinion and
Consent of Disclosure Law Group, a Professional
Corporation
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FitLife Brands,
Inc.’s 2019 Omnibus Incentive Plan (incorporated by
reference to Appendix A to the Definitive Proxy Statement filed
with the Securities and Exchange Commission on July 12,
2019).
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Consent of
Weaver and Tidwell,
L.L.P.
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* filed
herewith
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 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 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 herein, 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 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 the Registration Statement shall be
deemed to be a new registration statement relating to the
securities offered herein, 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 Securities and Exchange
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.
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, in Omaha, Nebraska,
on June 25, 2021.
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FITLIFE BRANDS, INC.
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By:
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/s/ Dayton
Judd
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Dayton
Judd
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Chief Executive
Officer
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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.
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Signature
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Title
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Date
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By:
/s/ Dayton Judd
Dayton
Judd
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Chief Executive Officer, Chairman of the Board
(Principal Executive Officer)
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June 25,
2021
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By:
/s/ Susan
Kinnaman
Susan
Kinnaman
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Chief Financial
Officer
(Principal
Financial Officer)
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June 25,
2021
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By:
/s/ Grant
Dawson
Grant
Dawson
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Director
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June 25,
2021
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By:
/s/ Lewis
Jaffe
Lewis
Jaffe
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Director
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June 25,
2021
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By:
/s/ Todd
Ordal
Todd
Ordal
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Director
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June 25,
2021
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By:
/s/ Seth
Yakatan
Seth
Yakatan
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Director
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June 25,
2021
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