As filed with the Securities and Exchange Commission on May 28, 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

 


 

LRAD Corporation

(Exact name of registrant as specified in its charter)

 

Delaware

 

87-0361799

(State or Other Jurisdiction

of Incorporation or Organization)

 

(I.R.S. Employer

Identification No.)


 

16990 Goldentop Road, Suite A

San Diego, CA 92127

(858) 676-1112

 
 

(Address of Principal Executive Offices)

 


LRAD Corporation 2015 Equity Incentive Plan

(Full Title of the Plan)

 


 

The Corporation Trust Company

Corporation Trust Center

1209 Orange Street

Wilmington, DE 19801

(302) 658-7581

(Name, Address and Telephone Number, Including Area Code, of Agent for Service)

 


 

Copy to:

 

Joshua E. Little , Esq.

Durham Jones & Pinegar, P.C.

192 East 200 North, 3 rd Floor

St. George, UT 84770

(435) 674-0400

 


 

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 ☐

Non-accelerated filer ☐ 

Smaller reporting company ☒

  (Do not check if a smaller reporting company)

                       

 
 

 

   

 

CALCULATION OF REGISTRATION FEE

Title of Each Class of

Securities to be Registered

Amount

to be

Registered (1)

Proposed

Maximum

Offering Price

Per Share

Proposed

Maximum

Aggregate

Offering

Price

Amount of

Registration

Fee

Common stock, par value $.00001 per share

5,000,000 shares

$2.44 (2)

$12,200,000

$1,417.64

      

(1)

Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also registers an indeterminate number of additional shares that may be issued pursuant to the above-named plan as the result of any future stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of our outstanding shares of common stock.

(2)

This estimate is made pursuant to Rules 457(c) and 457(h) of the Securities Act solely for purposes of calculating the registration fee. The Proposed Maximum Offering Price Per Share is $2.44, which is the average of the high and low prices for the Registrant’s common stock as reported on The NASDAQ Stock Market on May 27, 2015.

(3) In accordance with Rule 457(p) under the Securities Act, the $1,417.64 registration fee is being offset by the previous overpayment of $371.52 filing fee in connection with the Registration Statement filed by the Registrant on March 2, 2011 on Form S-3 with File No. 333-172552.

 

Proposed sales to take place as soon after the effective date of the Registration Statement as awards granted under the above-named plan are granted, exercised and/or distributed.

 

 
 

 

 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT  

 

In this Registration Statement, LRAD Corporation is sometimes referred to as the “Company,” “Registrant , ” “we,” “us” or “our.”

 

Item 3. Incorporation of Documents by Reference.

 

The Securities and Exchange Commission (“SEC”) allows us to “incorporate by reference” the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this Registration Statement, and later information filed with the SEC will update and supersede this information. We hereby incorporate by reference into this Registration Statement the following documents previously filed with the SEC:

 

 

(a)

The Registrant’s Annual Report on Form 10-K for the year ended September 30, 2014, filed on November 20, 2014.

 

 

(b)

The Registrant’s Quarterly Reports on Form 10-Q for the quarterly periods ended December 31, 2014, filed on February 5, 2015, and March 31, 2015, filed on May 7, 2015.

 

 

(c)

The Registrant’s Current Reports on Forms 8-K filed on November 20, 2014, February 5, 2015, March 24, 2015 and May 7, 2015.

 

 

(d)

The description of the Registrant’s common stock contained in the Registration Statement on Form 10-SB, effective August 1, 1994, including any amendment or reports filed for the purpose of updating such description.

 

In addition, all documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the filing of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which de-registers all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing such documents, except as to specific sections of such statements as set forth therein. Any statement contained 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 incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement contained herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any subsequently filed document which also is incorporated or 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.

 

Notwithstanding the foregoing, under no circumstances shall any information furnished under Item 2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference unless such Form 8-K expressly provides to the contrary.

 

Item 4. Description of Securities.

 

Not applicable.

 

Item 5. Interests of Named Experts and Counsel.

 

Not applicable.

 

 
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Item 6. Indemnification of Directors and Officers.

 

Our Certificate of Incorporation provides that no director is liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Law. Section 102(b)(7) of the Delaware General Corporate Law enables a corporation, in its certificate of incorporation or an amendment thereto, to eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for violations of the directors’ fiduciary duty, except (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) pursuant to Section 174 of the Delaware General Corporation Law (providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions); or (iv) for any transaction from which a director derived an improper personal benefit. We will indemnify our directors against attorneys’ fees and other expenses and liabilities they incur to defend, settle or satisfy any civil or criminal action brought against them arising out of their association with or activities on behalf of us except as set forth above. We may also bear the expenses of such litigation for any such persons upon their promise to repay such sums if it is ultimately determined that they are not entitled to indemnification. Such expenditures could be substantial and may not be recouped, even if we are so entitled. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that, in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.

 

We currently have directors’ and officers’ liability insurance to provide our directors and officers with insurance coverage for losses arising from claims based on breaches of duty, negligence, errors and other wrongful acts.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

The Exhibit Index on page 5 is incorporated herein by reference as the list of exhibits required as part of this Registration Statement.

 

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;

 

 
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provided, however , that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if this Registration Statement is on Form S-8 and 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 Section 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 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 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 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, 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 San Diego , State of California, on May 28, 2015.

 

 

LRAD Corporation

 

 

 

 

 

 

 

 

 

 

By:

/s/  Thomas R. Brown

 

 

 

Thomas R. Brown

 

 

 

President, Chief Executive Officer and Director

 

 

   

POWER OF ATTORNEY

 

Each person whose signature appears below hereby constitutes and appoints Thomas R. Brown and Katherine H. McDermott, jointly and severally, his or her attorney-in-fact, each with the full power of substitution, for him or her in any and all capacities, to sign this Registration Statement, and any amendments thereto (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the SEC, hereby ratifying and confirming all that each of said attorneys-in-fact, or his or her substitute or substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, 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.

 

Signature

 

Title

 

Date

 

       

/s/ Thomas R. Brown

 

President, Chief Executive Officer, & Director

 

May 28, 2015

Thomas R. Brown        

 

       

/s/ Katherine H. McDermott

 

Chief Financial Officer and Secretary

 

May 28, 2015

Katherine H. McDermott        

 

       

/s/ John G. Coburn

 

Chairman of the Board

 

May 28, 2015

John G. Coburn        

 

       

/s/ Laura M. Clague

 

Director

 

May 28, 2015

Laura M. Clague        

 

       

/s/ Richard H. Osgood III

 

Director

 

May 28, 2015

Richard H. Osgood III        

 

       

/s/ Dennis J. Wend

 

Director

 

May 28, 2015

Dennis J. Wend        

 

       

 

 

 

 
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EXHIBIT INDEX

 

Exhibit

Number

 

Exhibit Description

5.1

Opinion of Durham Jones & Pinegar, P.C.

   

10.1

LRAD Corporation 2015 Equity Incentive Plan. Filed as an exhibit to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on March 24, 2015 and incorporated herein by reference.

   

10.2

Form of Stock Option Agreement under the LRAD Corporation 2015 Equity Incentive Plan filed as an exhibit to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on March 24, 2015 and incorporated herein by reference.

   

23.1

Consent of Squar, Milner, Peterson, Miranda & Williamson, LLP independent registered public accounting firm

   

23.2

Consent of Durham Jones & Pinegar, P.C. (included in Exhibit 5.1)

   

24.1

Power of Attorney (see signature page)

 

 

 

5

 

Exhibit 5.1

 

Durham Jones & Pinegar, P.C.

192 East 200 North, Third Floor

St. George, Utah 84770-2879

435.674.0400

435.628.1610 Fax

www.djplaw.com

 

 

May 28, 2015

 

LRAD Corporation

16990 Goldentop Road, Suite A

San Diego, CA 92127

 

 

Re:

Registration Statement on Form S-8: 5,000,000 Shares of Common Stock, $0.00001 par value

 

Ladies and Gentlemen:

 

We have acted as counsel to LRAD Corporation, a Delaware corporation (the “Company”), in connection with the proposed issuance of up to 5,000,000 shares (the “ Shares ”) of common stock, $0.00001 par value, of the Company, pursuant to the LRAD Corporation 2015 Equity Incentive Plan (the “ Plan ”). The Shares are included in a Registration Statement on Form S-8 under the Securities Act of 1933, as amended (the “ Act ”), filed with the Securities and Exchange Commission (the “ Commission ”) on May 28, 2015 (the “ Registration Statement ”). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement, other than as expressly stated herein with respect to the issuance of the Shares.

 

As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We are opining herein as to the state laws of the State of Delaware, and we express no opinion with respect to the applicability thereto, or the effect thereon, of any other laws, or as to any matters of municipal law or the laws of any local agencies within any state.

 

In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as copies.

 

Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Shares have been issued by the Company against payment therefor, in the circumstances contemplated by the Plan, assuming in each case that the individual grants or awards under the Plan are duly authorized by all necessary corporate action and exercised in accordance with the requirements of law, such corporate action and the Plan (and the agreements and awards duly adopted thereunder and in accordance therewith), the issuance and sale of the Shares will have been duly authorized by all necessary corporate action of the Company, and the Shares will be validly issued, fully paid and nonassessable.

 

 
 

 

 

This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. This opinion letter is rendered to you as of the date hereof, and we assume no obligation to advise you or any other person with regard to any change after the date hereof in the circumstances or the law that may bear on the matters set forth herein even if the change may affect the legal analysis, legal conclusion or other matters in this opinion letter.

 

We consent to your filing this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby 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 thereunder.

 

 

Very truly yours,

 

Durham Jones & Pinegar, P.C.

 

/s/ Durham Jones & Pinegar, P.C.

   

 

 

 

 

Exhibit 23.1

 

 

 

 

CONSENT OF INDEPENDENT REGISTERED

PUBLIC ACCOUNTING FIRM




We consent to the use in this Registration Statement on Form S-8 of LRAD Corporation (the “Company”) of our report dated November 20, 2014, relating to our audit of the Company’s September 30, 2014 consolidated financial statements incorporated by reference in this Prospectus, which is part of this Registration Statement.

 


SQUAR, MILNER, PETERSON, MIRANDA & WILLIAMSON, LLP

 

/s/ SQUAR, MILNER, PETERSON, MIRANDA & WILLIAMSON, LLP


San Diego, California
May 28, 2015