Registration No. 333-
As filed with the Securities and Exchange Commission on November 2, 2016
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Great Elm Capital Group, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware |
94-3219054 |
(State or Other Jurisdiction of |
(I.R.S. Employer |
Incorporation or Organization) |
Identification No.) |
200 Clarendon Street, 51st Floor
Boston, MA 02116
(Address of Principal Executive Offices) (Zip Code)
Great Elm Capital Group, Inc. 2016 Long-Term Incentive Compensation Plan
Great Elm Capital Group, Inc. 2016 Employee Stock Purchase Plan
(Full Title of the Plan)
Richard S. Chernicoff
Chief Executive Officer
Great Elm Capital Group, Inc.
200 Clarendon Street, 51st Floor
Boston, MA 02116
(Name and Address of Agent for Service of Process)
(617) 735-3500
(Telephone Number, Including Area Code, of Agent For Service)
Copies to:
Michael J. Mies, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
525 University Ave., Suite 1400
Palo Alto, California 94301
Tel: (650) 470-4500
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.
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Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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(Do not check if a smaller reporting company) |
Smaller reporting company |
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CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered |
Amount
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Proposed
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Proposed
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Amount of
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Common Stock, $0.001 par value, to be issued pursuant to the Great Elm Capital Group, Inc. 2016 Long-Term Incentive Compensation Plan (“LTIP”) |
2,550,000 |
$3.78 |
$9,639,000.00 |
$1,117,16 |
Common Stock, $0.001 par value, to be issued pursuant to the Great Elm Capital Group, Inc. 2016 Employee Stock Purchase Plan (“ESPP”) |
900,000 |
$3.78 |
$3,402,000 |
$394.29 |
Total |
3,450,000 |
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$13,041,000 |
$1,511.45 |
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(1) |
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Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of common stock of Great Elm Capital Group, Inc. (which changed its name from Unwired Planet, Inc. on June 16, 2016) (the “Registrant”) that become issuable under the plans set forth herein by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected that results in an increase to the number of outstanding shares of Registrant’s common stock, as applicable. |
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(2) |
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Estimated solely for the purpose of calculating the registration fee in accordance with Rules 457(h)(1) and 457(c) under the Securities Act, and based upon the average of the high and low prices of the Common Stock reported on the Nasdaq Global Select Market on November 1, 2016. |
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 Form S-8 will be sent or delivered to participants in the Great Elm Capital Group, Inc. 2016 Long-Term Incentive Compensation Plan and the Great Elm Capital Group, Inc. 2016 Employee Stock Purchase Plan, 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 into 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 documents filed by Great Elm Capital Group, Inc., a Delaware corporation (the “Registrant”), with the SEC pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated by reference in this Registration Statement:
(a) The Registrant’s Annual Report on Form 10-K for the year ended June 30, 2016, which includes audited financial statements for the Registrant’s latest fiscal year, filed with the SEC on September 14, 2016;
(b) The Registrant’s Current Report on Form 8-K filed with the SEC on October 17, 2016, pursuant to Section 13(a) or 15(d) of the Exchange Act;
(c) The description of the Registrant’s capital stock contained in the registration statement on Form 8-A (File No. 000-25687) filed with the SEC on April 1, 1999 to register such securities under the Exchange Act, including any amendment or report filed for the purpose of updating such description.
In addition, all documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, on or after 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 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 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 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 that also is incorporated or deemed to be incorporated by reference herein, modifies or supersedes such prior 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.
Item 4. Description of the Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
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Item 6. Indemnification of Directors and Officers
Section 102(b)(7) of the Delaware General Corporation Law (the “DGCL”) allows a corporation to provide in its certificate of incorporation that a director of the corporation will not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached the duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. The Registrant’s amended and restated certificate of incorporation provides for this limitation of liability. The Registrant has entered into indemnification agreements with its directors that provide for the Registrant to indemnify them to the fullest extent permitted by Delaware law.
Section 145 of the DGCL, or Section 145, provides, among other things, that a Delaware corporation may indemnify any person who was, is or is threatened to be made, 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 such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include 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 such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful. A Delaware corporation may indemnify any persons who were or are a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person is or was a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best employee or agent is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses (including attorneys’ fees) which such officer or director has actually and reasonably incurred.
Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who 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 or enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify such person under Section 145.
The Registrant’s amended and restated bylaws provide that the Registrant must indemnify, and advance expenses to, its directors and officers to the full extent authorized by the DGCL.
The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, provision of the Registrant’s amended and restated certificate of incorporation, the Registrant’s amended and restated bylaws, agreement, vote of stockholders or disinterested directors or otherwise. Notwithstanding the foregoing, the Registrant shall not be obligated to indemnify a director or officer in respect of a proceeding (or part thereof) instituted by such director or officer, unless such proceeding (or part thereof) has been authorized by the Registrant’s board of directors pursuant to the applicable procedure outlined in the amended and restated bylaws.
Section 174 of the DGCL provides, among other things, that a director, who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption, may be held jointly and severally liable for such actions. A director who was either absent when the unlawful actions were approved or dissented at the time may avoid liability by causing his or her dissent to such actions to be entered in the books containing the minutes of the meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.
Item 7. Exemption from Registration Claimed
Not applicable.
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Item 8. Exhibits.
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Exhibit
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Description of Exhibit |
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Exhibit 4.1 |
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Amended and Restated Certificate of Incorporation (filed as Exhibit 3.1 to the Form 8-K filed on November 15, 2013 and incorporated herein by reference) |
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Exhibit 4.2 |
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Certificate of Amendment to the Amended and Restated Certificate of Incorporation (filed as Exhibit 3.1 to the Form 8-K filed on January 5, 2016 and incorporated herein by reference) |
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Exhibit 4.3 |
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Certificate of Amendment to the Amended and Restated Certificate of Incorporation (filed as Exhibit 3.1 to the Form 8-K filed on January 11, 2016 and incorporated herein by reference) |
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Exhibit 4.4 |
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Certificate of Amendment to the Amended and Restated Certificate of Incorporation (filed as Exhibit 3.1 to the Form 8-K filed on June 16, 2016 and incorporated herein by reference) |
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Exhibit 4.5 |
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Amended and Restated Bylaws (filed as Exhibit 3.2 to the Form 8-K filed on February 6, 2015 and incorporated herein by reference) |
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Exhibit 4.6 |
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Form of the Registrant’s common stock certificate (filed as Exhibit 4.1 to the Form 10-K filed on September 14, 2016 and incorporated herein by reference) |
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Exhibit 5.1 |
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Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding the validity of the securities being registered |
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Exhibit 23.1 |
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Consent of Grant Thornton, LLP, Independent Registered Public Accounting Firm |
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Exhibit 23.2 |
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Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1 and incorporated herein by reference) |
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Exhibit 24.1 |
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Power of Attorney (included as part of the signature page to this Registration Statement) |
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Exhibit 99.1 |
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Great Elm Capital Group, Inc. 2016 Long-Term Incentive Compensation Plan (filed as Annex D to the Proxy Statement filed on May 25, 2016 and incorporated herein by reference) |
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Exhibit 99.2 |
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Great Elm Capital Group, Inc. 2016 Employee Stock Purchase Plan (filed as Annex E to the Proxy Statement filed on May 25, 2016 and incorporated herein by reference) |
Item 9. Undertakings.
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(a) |
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The undersigned registrant hereby undertakes: |
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
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(i) |
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To include any prospectus required by section 10(a)(3) of the Securities Act; |
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(ii) |
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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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; |
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(iii) |
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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) of this section 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.
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(2) |
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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. |
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(3) |
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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. |
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(b) |
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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. |
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(c) |
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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, 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 Boston, in the Commonwealth of Massachusetts, on this 2 nd day of November, 2016.
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GREAT ELM CAPITAL GROUP, INC. |
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By: |
/s/ Richard S. Chernicoff |
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Richard S. Chernicoff |
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Chief Executive Officer, President, and |
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Secretary |
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Great Elm Capital Group, Inc., hereby severally constitute and appoint Richard S. Chernicoff and Peter A. Reed, and each of them singly, our true and lawful attorneys, with full power to sign for us in our names in the capacities indicated below, any amendments to this Registration Statement on Form S-8 (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, and generally to do all things in our names and on our behalf in our capacities as officers and directors to enable Great Elm Capital Group, Inc.., to comply with the provisions of the Securities Act of 1933, as amended, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said Registration Statement and all amendments thereto.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities below on November 2, 2016.
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Name |
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Title(s) |
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Chief Executive Officer, President, Secretary, and Director (Principal Executive Officer) |
/s/ Richard S. Chernicoff |
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Richard S. Chernicoff |
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/s/ James D. Wheat |
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Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
James D. Wheat |
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/s/ Jess M. Ravich |
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Director |
Jess M. Ravich |
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/s/ Peter A. Reed |
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Director |
Peter A. Reed |
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/s/ Boris Teksler |
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Director |
Boris Teksler |
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/s/ Hugh Steven Wilson |
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Director |
Hugh Steven Wilson |
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INDEX TO EXHIBITS
Exhibit
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Description of Exhibit |
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Exhibit 4.1 |
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Amended and Restated Certificate of Incorporation (filed as Exhibit 3.1 to the Form 8-K filed on November 15, 2013 and incorporated herein by reference) |
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Exhibit 4.2 |
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Certificate of Amendment to the Amended and Restated Certificate of Incorporation (filed as Exhibit 3.1 to the Form 8-K filed on January 5, 2016 and incorporated herein by reference) |
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Exhibit 4.3 |
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Certificate of Amendment to the Amended and Restated Certificate of Incorporation (filed as Exhibit 3.1 to the Form 8-K filed on January 11, 2016 and incorporated herein by reference) |
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Exhibit 4.4 |
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Certificate of Amendment to the Amended and Restated Certificate of Incorporation (filed as Exhibit 3.1 to the Form 8-K filed on June 16, 2016 and incorporated herein by reference) |
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Exhibit 4.5 |
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Amended and Restated Bylaws (filed as Exhibit 3.2 to the Form 8-K filed on February 6, 2015 and incorporated herein by reference) |
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Exhibit 4.6 |
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Form of the Registrant’s common stock certificate (filed as Exhibit 4.1 to the Form 10-K filed on September 14, 2016 and incorporated herein by reference) |
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Exhibit 5.1 |
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Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding the validity of the securities being registered |
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Exhibit 23.1 |
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Consent of Grant Thornton, LLP, Independent Registered Public Accounting Firm |
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Exhibit 23.2 |
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Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1 and incorporated herein by reference) |
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Exhibit 24.1 |
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Power of Attorney (included as part of the signature page to this Registration Statement) |
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Exhibit 99.1 |
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Great Elm Capital Group, Inc. 2016 Long-Term Incentive Compensation Plan (filed as Annex D to the Proxy Statement filed on May 25, 2016 and incorporated herein by reference) |
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Exhibit 99.2 |
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Great Elm Capital Group, Inc. 2016 Employee Stock Purchase Plan (filed as Annex E to the Proxy Statement filed on May 25, 2016 and incorporated herein by reference) |
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EXHIBIT 5.1 |
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Skadden, Arps, Slate, Meagher & Flom llp |
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525 University Avenue Palo Alto, California 94301 ________
TEL: (650) 470-4500 FAX: (650) 470-4570 www.skadden.com
November 2, 2016 Great Elm Capital Group, Inc. 200 Clarendon Street, 51st Floor Boston, MA 02116 |
FIRM/AFFILIATE OFFICES ----------- BOSTON CHICAGO HOUSTON LOS ANGELES NEW YORK WASHINGTON, D.C. WILMINGTON ----------- BEIJING BRUSSELS FRANKFURT HONG KONG LONDON MOSCOW MUNICH PARIS SÃO PAULO SEOUL SHANGHAI SINGAPORE TOKYO TORONTO
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RE: Great Elm Capital Group, Inc. Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to Great Elm Capital Group, Inc., a Delaware corporation (the “ Company ”), in connection with the Registration Statement on Form S-8 of the Company (together with all exhibits, the “ Registration Statement ”) being filed with the Securities and Exchange Commission (the “ Commission ”) on the date hereof by the Company, related to the registration by the Company of an aggregate of 3,450,000 shares (the “ Plan Shares ”) of the Company’s Common Stock, $0.001 par value per share (the “ Common Stock ”), authorized for issuance pursuant to the Great Elm Capital Group, Inc. 2016 Long-Term Incentive Award Plan (the “ LTIP ”) and the Great Elm Capital Group, Inc. 2016 Employee Stock Purchase Plan (the “ ESPP, ” together with the LTIP the “ Plans ”).
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K of the General Rules and Regulations under the Securities Act of 1933, as amended (the “ Act ”).
In rendering the opinions stated herein, we have examined and relied upon the following:
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(b) A certificate, dated the date hereof, by Richard S. Chernicoff, Chief Executive Officer, President, and Secretary of the Company (the “ Officer’s Certificate ”); |
Great Elm Capital Group, Inc.
November 2, 2016
Page 2
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(c) The Amended and Restated Certificate of Incorporation of the Company, certified by the Secretary of State of the State of Delaware, and certified pursuant to the Officer’s Certificate; |
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(d) The Certificate of Amendment to the Amended and Restated Certificate of Incorporation, dated January 4, 2016, the Certificate of Amendment to the Amended and Restated Certificate of Incorporation, dated January 8, 2016, and the Certificate of Amendment to the Amended and Restated Certificate of Incorporation, dated June 15, 2016, each certified by the Secretary of State of the State of Delaware, and each certified pursuant to the Officer’s Certificate |
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(e) The Amended and Restated Bylaws of the Company, certified pursuant to the Officer’s Certificate; |
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(f) The Plans; |
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(g) Action by Written Consent of the Board of Directors of the Company, adopted on May 19, 2016, related to the approval of the Plans, the filing of the Registration Statement and certain related matters, certified pursuant to the Officer’s Certificate; and |
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(h) The Final Report of the Inspector of Election, dated June 15, 2016, reflecting the approval of the Plans among other related matters by the Stockholders of the Company, certified pursuant to the Officer’s Certificate. |
We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinions stated below.
In our examination, we have assumed the genuineness of all signatures, including endorsements, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photostatic copies, and the authenticity of the originals of such copies. As to any facts relevant to the opinions stated herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and others and of public officials, including those in the Officer’s Certificate.
In rendering the opinion stated herein, we have also assumed that: (i) an appropriate account statement rendering the Plan Shares credited to the recipient’s account maintained with the Company’s transfer agent has been issued by the Company’s transfer agent; (ii) the issuance of the Plan Shares has been properly recorded in the books and records of the Company; (iii) each award agreement pursuant to which rights to acquire Common Stock or other awards are granted pursuant to the Plans will be consistent with the Plans and will be duly authorized, executed and delivered by the parties thereto and (iv) the consideration received by the Company
Great Elm Capital Group, Inc.
November 2, 2016
Page 3
for each of the Plan Shares delivered pursuant to the Plans shall not be less than the per share par value of the Plan Shares.
We do not express any opinion with respect to the laws of any jurisdiction other than General Corporation Law of the State of Delaware (including, to the extent applicable, the Delaware constitution and judicial decisions).
Based upon the foregoing and subject to the qualifications and assumptions stated herein, we are of the opinion that the Plan Shares have been duly authorized for issuance by the Company and, when issued, delivered and paid for in accordance with the terms of the Plans and the applicable award agreement, the Plan Shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission. This opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
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Very truly yours, |
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/s/ Skadden, Arps, Slate, Meagher & Flom LLP |
MJM
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our reports dated September 13, 2016 with respect to the consolidated financial statements and internal control over financial reporting of Great Elm Capital Group, Inc. included in the Annual Report on Form 10-K for the year ended June 30, 2016, which are incorporated by reference in this Registration Statement. We consent to the incorporation by reference of the aforementioned reports in this Registration Statement.
/s/ GRANT THORNTON LLP
Phoenix, Arizona
November 1, 2016