As filed with the Securities and Exchange Commission on June 11, 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

 

 

BIOHITECH GLOBAL, INC.

(Exact name of registrant as specified in its charter)

 

 Delaware

  46-2336496
(State or other jurisdiction of
incorporation or organization) 		  ( I.R.S. Employer
Identification No.)
     

80 Red Schoolhouse Road, Suite 101

Chestnut Ridge, NY

  10977
(Address of Principal Executive Offices)   (Zip code)

 

BioHiTech Global, Inc. 2017 Executive Equity Incentive Plan
BioHiTech Global, Inc. 2015 Equity Incentive Plan
(Full title of the Plan)

 

Frank E. Celli
Chief Executive Officer
BioHiTech Global, Inc.
80 Red Schoolhouse Road, Suite 101,
Chestnut Ridge, NY 10977
(Name and address of agent for service)

 

(845) 262-1081
(Telephone number, including area code, of agent for service)

 

Copies to:

Peter Campitiello, Esq.

Kane Kessler P.C.

666 Third Avenue

New York, New York 10017

212-541-6222

 

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.

 

Large accelerated filer ¨ Accelerated filer ¨
Non-accelerated filer   ¨ (Do not check if a smaller reporting company) Smaller reporting company þ
  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

Maximum

Aggregate

Offering Price (2)

  Amount of
Registration Fee
Common Stock, par value $0.0001 per share   1,750,000   $3.80   $6,650,000   $827.93

 

(1) This registration statement covers a total of 1,000,000 shares of common stock that are available for issuance under the BioHiTech Global, Inc. 2017 Executive Equity Incentive Plan and 750,000 shares of common stock that are available under the BioHiTech, Inc. 2015 Equity Incentive Plan.  Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this registration statement also covers additional shares of the Registrant’s common stock, par value $0.0001 per share, which may become issuable by reason of any stock dividend, stock split, recapitalization or any other similar transaction.
(2) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) and (h) of the Securities Act on the basis of the last reported sale price of a share of common stock, par value $0.0001 per share, of BioHiTech Global, Inc., as reported by the Nasdaq Capital Market on June 8, 2018.

 

 

 

 

 

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

Item 1. Plan Information.*

 

Item 2. Registrant Information and Employee Plan Annual Information.*

 

* The documents containing the information specified in Part I of this Registration Statement on Form S-8 will be delivered to participants in the BioHiTech Global, Inc. 2017 Executive Incentive Plan and the BioHiTech Global, Inc. 2015 Equity Incentive Plan (the “Plans”) as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “ Securities Act ”). Such documents are not required to be, and are not, filed with the Securities and Exchange Commission (the “ SEC ”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant 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.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference

 

The following document(s) previously filed with the SEC by BioHiTech Global, Inc., a Delaware corporation (the “ Company ”), pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), are incorporated herein by reference:

 

(1) The Company’s Annual Report on Form 10-K, for the fiscal year ended December 31, 2017, filed with the SEC on April 2, 2018;
(2) The Company’s Quarterly Reports on Form 10-Q for the quarter ended March 31, 2018 filed with the SEC on May 15, 2018.
(3) The Company’s Current Reports on Form 8-K, filed with the SEC on January 4, 2018, January 30, 2018, February 6, 2018, February 8, 2018, April 4, 2018, April 5, 2018, and May 16, 2018.
(4) The Company’s Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 27, 2018; and
(5) The Company’s Registration on Form 8-A (File No. 001-36843), filed with the SEC on April 5, 2018 and the related Form 8-A Certification, filed with the SEC on April 6, 2018;
(5) The description of the Company’s common stock, par value $0.0001 per share (the “ Common Stock ”), which is contained in the Company’s Registration Statement on Form S-1 (File No. 333-192151), filed with the SEC on November 7, 2013, 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 (not including any information furnished under Items 2.02, 7.01 or 9.01 of Current Reports on Form 8-K, which information is not incorporated by reference herein) prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities 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 filing of such documents with the SEC.

 

Any statement contained in a document incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement (or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein), modifies or supersedes such statement. Any statement contained in this Registration Statement shall be deemed to be modified or superseded to the extent that a statement contained in a subsequently filed document that is or is deemed to be incorporated by reference in this Registration Statement modifies or supersedes such prior 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.

 

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Item 4. Description of Securities

 

Not applicable.

 

Item 5. Interests of Named Experts and Counsel

 

None.

 

Item 6. Indemnification of Directors and Officers

 

Section 102(b)(7) of the Delaware General Corporation Law (the “ DGCL ”) permits a corporation, in its certificate of incorporation, to limit or eliminate the personal liability of a director to the corporation or its stockholders for monetary damages for breaches of fiduciary duty as a director, except for liability (a) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the DGCL (regarding, among other things, the payment of unlawful dividends) or (d) for any transaction from which the director derived an improper personal benefit.

 

Under Section 145(a) of the DGCL, 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 (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 such person in connection with such action, suit or proceeding, provided that such person acted in good faith and in a manner such 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 his conduct was unlawful.

 

Under Section 145(b) of the DGCL, 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 such 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 enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred in connection with the defense or settlement of such action or suit, provided that such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may 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 Delaware 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 shall deem proper. Notwithstanding the preceding sentence, except as otherwise provided in our amended and restated bylaws, the Company shall be required to indemnify any such person in connection with a proceeding (or part thereof) commenced by such person only if the commencement of such proceeding (or part thereof) by any such person was authorized by the Company’s board of directors.

 

As permitted by Section 102(b)(7) of the DGCL, the Company’s certificate of incorporation provides that no director of the Company shall be liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director except to the extent that such exemption from liability or limitation thereof is not permitted under the DGCL as currently in effect or as the same may be amended. This provision of the Company’s certificate of incorporation does not eliminate the directors’ fiduciary duties, and in appropriate circumstances, equitable remedies such as injunctive or other forms of nonmonetary relief, which will remain available under Delaware law. In addition, each director will be subject to liability for breach of the director’s duty of loyalty to the Company, including for actions leading to improper personal benefit to the director, for acts or omissions not in good faith or involving intentional misconduct, for knowing violations of law and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law. This provision also does not affect a director’s responsibilities under any other law, such as the federal securities laws or state or federal environmental laws.

 

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Additionally, the Company maintains directors’ and officers’ liability insurance for each of its directors and officers.

 

Item 7. Exemption from Registration Claimed

 

Not applicable.

 

Item 8. Exhibits

 

3.1 Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed with the SEC on August 11, 2015) as amended by the Certificate of Amendment to the Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed with the SEC on June 15, 2017).
   
3.2 Bylaws of the Company (incorporated herein by reference to Exhibit 3.2 to the Company’s Registration Statement on Form S-1 filed on November 7, 2013.).
   
4.1 Specimen Common Stock Certificate.
   
5.1 Opinion of Counsel
   
10.1 BioHiTech Global, Inc. 2015 Equity Incentive Plan (incorporated by reference to Exhibit 4.1 to the Company’s Annual Report on Form 10-K for the fiscal year ending December 31, 2015, filed with the SEC on March 29, 2016).
   
10.2 BioHiTech Global, Inc. 2017 Executive Equity Incentive Plan (incorporated by reference to Appendix A to the Company’s Definitive Proxy Statement on Schedule 14A, filed with the SEC on May 15, 2017).
   
23.1 Consent of Marcum LLP.
   
23.2 Consent of Kane Kessler, P.C. (included as part of Exhibit 5.1 hereto).
   
24.1 Power of Attorney (included on the signature page hereto).

 

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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 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. 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

 

(iii) 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 (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 SEC 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; and

 

(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 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 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 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, 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 the City of Chestnut Ridge, State of New York, on the 11 th day of June, 2018.

 

  BIOHITECH GLOBAL, INC.
   
  By: /s/ Brian C. Essman
  Name: Brian C. Essman
  Title:   Chief Financial Officer, Treasurer

 

 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Frank E. Celli and Brian C. Essman, his true and lawful attorney-in-fact and agent, each acting alone, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including any post-effective amendments) to the Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following person in the capacities indicated and on the date indicated below.

 

Signature   Title   Date
         
/s/ Frank E. Celli   Chief Executive Officer and   June 11, 2018
Frank E. Celli   Chairman of the Board    
    ( principal executive officer )    
         
/s/ Brian C. Essman   Chief Financial Officer and Treasurer   June 11, 2018
Brian C. Essman    ( principal financial officer and principal accounting officer )    
         
/s/ James D. Chambers   Director   June 11, 2018
James D. Chambers        
         
/s/ Anthony Fuller   Director   June 11, 2018
Anthony Fuller        
         
/s/ Robert A. Graham   Director   June 11, 2018
Robert A. Graham        
         
/s/ Harriet Hentges   Director   June 11, 2018
Harriet Hentges        
         
/s/ Douglas VanOort   Director   June 11, 2018
Douglas VanOort        

 

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EXHIBIT INDEX

 

3.1 Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed with the SEC on August 11, 2015) as amended by the Certificate of Amendment to the Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed with the SEC on June 15, 2017).
   
3.2 Bylaws of the Company (incorporated herein by reference to Exhibit 3.2 to the Company’s Registration Statement on Form S-1 filed on November 7, 2013.).
   
4.1 Specimen Common Stock Certificate.
   
5.1 Opinion of Counsel
   
10.1 BioHiTech Global, Inc. 2015 Equity Incentive Plan (incorporated by reference to Exhibit 4.1 to the Company’s Annual Report on Form 10-K for the fiscal year ending December 31, 2015, filed with the SEC on March 29, 2016).
   
10.2 BioHiTech Global, Inc. 2017 Executive Equity Incentive Plan (incorporated by reference to Appendix A to the Company’s Definitive Proxy Statement on Schedule 14A, filed with the SEC on May 15, 2017).
   
23.1 Consent of Marcum LLP.
   
23.2 Consent of Kane Kessler, P.C. (included as part of Exhibit 5.1 hereto).
   
24.1 Power of Attorney (included on the signature page hereto).

 

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Exhibit 4.1

Specimen Common Stock Certificate

 

 

 

 

 

 

 

 

 

Exhibit 5.1

 

Kane Kessler, P.C.

666 Third Avenue

New York, New York 10017

 

 

June 11, 2018

 

VStock Transfer, LLC

18 Lafayette Place

Woodmere, NY 11598

 

Re: BioHiTech Global, Inc.

Registration Statement on Form S-8

 

Gentlemen:

 

We have acted as special counsel to BioHiTech Global, Inc., a Delaware corporation (the “ Company ”), in connection with the preparation and filing of a Registration Statement on Form S-8 (the “ Registration Statement ”) pertaining to the registration by the Company under the Securities Act of 1933, as amended (the “ Securities Act ”), of 1,750,000 shares (the “ Shares ”) of the Company’s common stock, $0.0001 par value per share (“ Common Stock ”), pursuant to the BioHiTech Global, Inc. 2015 Equity Incentive Plan and the BioHiTech Global, Inc. 2017 Executive Equity Incentive Plan (collectively, the “ Plans ”).

 

In our capacity as special counsel to the Company in connection with the matters referred to above, we have examined copies of the following: (i) the Certificate of Incorporation of the Company, as amended and currently in effect (the “ Certificate ”), (ii) the Amended and Restated By-laws of the Company currently in effect (the “ By-laws ”), and records of certain of the Company’s corporate proceedings as reflected in its minute books, (iii) the Plans, (iv) a specimen certificate representing the Common Stock and (v) the Registration Statement, in the form it is to be filed with the Securities and Exchange Commission (the “ Commission ”) on the date hereof. We have also examined such other documents, papers, authorities and statutes as we have deemed necessary to form the basis of the opinions hereinafter set forth.

 

In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies, and the authenticity of the originals of such documents. As to certain facts material to this opinion, we have relied upon oral or written statements and representations of officers and other representatives of the Company and certificates of public officials, and such other documents and information as we have deemed necessary or appropriate to enable us to render the opinions expressed below. We have not undertaken any independent investigation to determine the accuracy of any such facts.

 

We have also assumed that the Company will cause certificates representing Shares issued in the future to be properly executed and delivered and will conform to the specimen certificate examined by us evidencing the Common Stock or, if the Shares are issued in book-entry form, an appropriate account statement evidencing the Shares credited to the recipient’s account maintained with the Company’s transfer agent will be issued by said transfer agent, and that the Company will take all other actions appropriate for the due and proper issuance of such Shares. We have assumed for purposes of this opinion that the Company will receive adequate consideration (not less than par value thereof) for all Shares issued under the Plans. We express no opinion regarding any Shares reacquired by the Company after initial issuance.

 

Based upon and subject to the qualifications, assumptions and limitations stated in this letter, it is our opinion that the Shares issuable by the Company, under and in accordance with all of the provisions of the Plans, have been duly authorized and will be validly issued, fully paid and non-assessable.

 

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We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.

 

We are qualified to practice law in the State of New York and do not purport to be experts on any law other than the laws of the State of New York, the Delaware General Corporation Law and the Federal law of the United States. We are not admitted or qualified to practice in the State of Delaware; however, we are generally familiar with the Delaware General Corporation Law as currently in effect and have made such inquiries as we deem necessary to render the opinions contemplated herein. We express no opinion regarding the Securities Act, or any other federal or state securities laws or regulations.

 

The opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or the prospectus which forms a part thereof, other than as to the due authorization and validity of the Shares. In addition, we acknowledge and understand that this opinion letter may also be relied upon by Vstock Transfer, LLC. This opinion letter is limited to the specific legal matters expressly set forth herein and is limited to present statutes, regulations and administrative and judicial interpretations. We assume no obligation to revise or supplement this opinion in the event of future changes in such laws or regulations.

 

  Very truly yours,
   
  KANE KESSLER, P.C.
   
  By: /s/ Kane Kessler, P.C.
    Kane Kessler, P.C.

 

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Exhibit 23.1

 

  Independent Registered Public Accounting Firm’s Consent

 

We consent to the incorporation by reference in this Registration Statement of BioHiTech Global, Inc. and Subsidiaries on Form S-8 of our report dated April 2, 2018, with respect to our audits of the consolidated financial statements and related consolidated statements of operations and comprehensive loss, cash flows, and stockholders’ deficit of BioHiTech Global, Inc. and Subsidiaries as of December 31, 2017 and 2016 and for the years then ended appearing in the Annual Report on Form 10-K of BioHiTech Global, Inc. and Subsidiaries for the year ended December 31, 2017.

 

/s/ Marcum llp

 

Marcum llp

Melville, NY

June 11, 2018