As filed with the Securities and Exchange Commission on February 28, 2019
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EASTSIDE DISTILLING, INC.
(Exact name of Registrant as specified in its charter)
Nevada | 20-3937596 |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
1001 SE Water Avenue, Suite 390
Portland, Oregon 97214
(Address of principal executive offices, including zip code)
2016 Equity Incentive Plan OF EASTSIDE DISTILLING, INC.
(Full title of the plan)
Grover Wickersham
1001 SE Water Avenue, Suite 390
Portland, Oregon 97214
(971) 888-4264
(Name, address and telephone number, including area code, of agent for service)
Copy to:
Chris Hall
Danielle Benderly
Perkins Coie LLP
1120 NW Couch Street, 10th Floor
Portland, Oregon 97209
(503) 727-2000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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. (Check one):
Large accelerated filer [ ] | Non-accelerated filer [ ] | Smaller reporting company [X] | ||
Accelerated filer [ ] | (Do not check if a 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 | Amount to Be Registered (1) | Proposed Maximum Offering Price Per Share (2) | Proposed Aggregate | Amount of Registration Fee (2) | ||||||||||||
Common Stock, $0.0001 par value, to be issued pursuant to the 2016 Equity Incentive Plan of Eastside Distilling, Inc. | 1,825,334 | $ | 5.91 | $ | 10,787,723.94 | $ | 1,307.47 |
(1) | Plus an indeterminate number of additional shares that may be issued as a result of an adjustment to the number of shares to be issued pursuant to the Plan resulting from any future stock split, stock dividend or similar adjustment of the Registrant’s outstanding Common Stock. |
(2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457 under the Securities Act of 1933, as amended. The Proposed Maximum Offering Price Per Share is estimated to be $5.91 based on the average of the high sales price ($6.07) and the low sales price ($5.75) for the Registrant’s Common Stock as reported by the Nasdaq Stock Market on February 25, 2019. |
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission (the “Commission”) 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, 2017, filed with the Commission on April 2, 2018, which contains audited financial statements for the most recent fiscal year for which such statements have been filed;
(b) The Registrant’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2018, June 30, 2018 and September 30, 2018, filed with the Commission on May 14, 2018, August 13, 2018 and November 14, 2018, respectively;
(c) The Registrant’s Current Reports on Form 8-K filed with the Commission on April 9, 2018, June 21, 2018, August 3, 2018, September 7, 2018, September 13, 2018, October 19, 2018, November 21, 2018, December 12, 2018 and January 14, 2019; and
(d) The description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form 8-A filed on August 8, 2017 and May 22, 2013, including any amendments or reports 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 Securities Exchange Act of 1934, as amended (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.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Articles 5 and 6 of the Registrant’s Amended and Restated Articles of Incorporation (“Articles”), Article VII of the Registrant’s Amended and Restated Bylaws (“Bylaws”) and the Nevada Revised Statutes, contain indemnification and personal liability limitation provisions.
The Nevada Revised Statutes provide that a director or officer is not individually liable to the corporation or its stockholders or creditors for any damages as a result of any act or failure to act in the director’s or officer’s capacity as a director or officer unless it is proven that the act or failure to act constituted a breach of director’s or officer’s fiduciary duties as a director or officer and the breach of those duties involved intentional misconduct, fraud or a knowing violation of law. The corporation’s Articles of Incorporation or an amendment thereto may, however, provide for greater individual liability. Furthermore, directors may be jointly and severally liable for the payment of certain distributions in violation of Chapter 78 of the Nevada Revised Statutes.
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The Nevada Revised Statutes also provide that under certain circumstances, a corporation may indemnify any person for amounts incurred in connection with a pending, threatened or completed action, suit or proceeding in which the person is, or is threatened to be made, a party by reason of the person being a director, officer, employee or agent of the corporation or serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, if such person (a) is not liable for a breach of fiduciary duty involving intentional misconduct, fraud or a knowing violation of law or such greater standard imposed by the corporation’s articles of incorporation; or (b) acted in good faith and in a manner which 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. Additionally, a corporation may indemnify a director, officer, employee or agent with respect to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor, if such person (a) is not liable for a breach of fiduciary duty involving intentional misconduct, fraud or a knowing violation of law or such greater standard imposed by the corporation’s articles of incorporation; or (b) acted in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the corporation, however, indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court to be liable to the corporation or for amounts paid in settlement to the corporation, unless the court determines that the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper. To the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to above, or in defense of any claim, issue or matter therein, the corporation shall indemnify the person against expenses, including attorneys’ fees, actually and reasonably incurred by the person in connection with the defense.
Pursuant to the Registrant’s Articles and Bylaws, the Registrant will indemnify and hold harmless, to the fullest extent permitted by the Nevada Revised Statutes or any other applicable laws, any person serving or who served as a director, officer, employee or agent of us, or who is or was serving at the Registrant’s request as a director, officer, employee, trustee or agent of another corporation, partnership, joint venture, trust or other enterprise who 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, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he 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 his conduct was unlawful. With respect to actions brought by or in the right of the corporation, the Registrant is required 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 Registrant to procure a judgment in the Registrant’s favor by reason of the fact that he is or was an serving as the Registrant’s agent against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Registrant, except that no indemnification will be made in respect of any claim, issue or matter as to which the agent will have been adjudged to be liable to us by a court of competent jurisdiction, as described in greater detail in the Registrant’s Bylaws. The payment of expenses includes the requirement that the Registrant pay expenses in defending an action or proceeding in advance of final disposition of such action, suit or proceeding upon receipt of an undertaking by the agent to repay such payment if it is ultimately determined that such person is not entitled to indemnification. Such indemnification is not exclusive of any other right to indemnification provided by law or otherwise.
The Registrant’s Bylaws also provide that the Registrant may enter into indemnification agreements with its directors, officers, employees or agents of the Corporation, or any person serving at the request of the Registrant as a director, officer, employee, trustee or agent of another corporation, partnership, joint venture, trust or other enterprise. the Registrant’s Articles and Bylaws provide that the Registrant may purchase and maintain insurance on behalf of any such person against any liability asserted against such person and incurred in any such capacity or arising out of such status, whether or not the Registrant would have the power to indemnify such person.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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Item 8. EXHIBITS
EXHIBIT INDEX
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 of 1933, as amended (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 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 Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefits 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 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 Portland, State of Oregon, on February 28, 2019.
EASTSIDE DISTILLING, INC. | |
/s/ Grover T. Wickersham | |
Grover T. Wickersham | |
Chairman and Chief Executive Officer |
Each person whose signature appears below authorizes Grover T. Wickersham and Steven Shum, or either of them, as attorneys-in-fact with full power of substitution, to execute in the name and on the behalf of each person, individually and in each capacity stated below, and to file, any and all amendments to this Registration Statement, including any and all post-effective amendments.
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 February 28, 2019.
Signature | Title | |
/s/ Grover T. Wickersham | Chairman and Chief Executive Officer | |
Grover T. Wickersham | (Principal Executive Officer) | |
/s/ Steven Shum | Chief Financial Officer | |
Steven Shum | (Principal Financial and Accounting Officer) | |
/s/ Shelly A. Saunders | Director | |
Shelly A. Saunders | ||
/s/ Trent Davis | Director | |
Trent Davis | ||
/s/ Michael M. Fleming | Director | |
Michael M. Fleming | ||
/s/ Jack Peterson | Director | |
Jack Peterson | ||
/s/ Matthew Szot | Director | |
Matthew Szot | ||
/s/ Patrick Crowley | Director | |
Patrick Crowley | ||
/s/ David Holmes | Director | |
David Holmes |
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