SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________________
FORM S-8
Registration Statement
Under
The Securities Act of 1933
Commission File No.
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SONIC FOUNDRY, INC.
(Exact name of registrant as specified in its charter)
__________________________________
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MARYLAND (State or other jurisdiction of incorporation or organization) |
39-1783372 (I.R.S. Employer Identification No.) |
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222 West Washington Avenue, Madison, WI 53703 (Address of principal executive offices) |
(608) 443-1600 (Issuer’s telephone number) |
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________________
_____________________________
2008 Employee Stock Purchase Plan
(Full title of plan)
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Joe Mozden, Jr. Chief Executive Officer 222 West Washington Avenue Madison, WI 53703 (608) 443-1600 (Name, address, including zip code, and telephone number, including area code, of agent for service) |
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Copy to: James R. Stern, Esq. McBreen & Kopko, LLP 209 West Jackson Blvd. Suite 900 Chicago, IL 60606 (312) 213-3611 |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting 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 [ ] Accelerated filer [ ]
Non-accelerated filer [ ] Smaller reporting company [x]
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. [ ]
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Calculation of Registration Fee
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Title of Securities to be Registered |
Amount to be Registered |
Proposed Maximum Offering Price per Share(1) |
Aggregate Offering Price(1) |
Amount of Registration Fee |
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Common Stock, $.01 par value per share |
100,000 Shares (2) |
$4.25 |
$425,000 |
$46.37 |
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(1) |
Estimated solely for purposes of calculating the registration fee in accordance with Rule 457(c) and (h) based on the last closing price reported on the OTC Market on April 1, 2021, which was $4.25. |
INTRODUCTION
This registration statement on Form S-8 is filed by Sonic Foundry, Inc., a Maryland corporation (“Sonic Foundry” or the “Company”) to register 100,000 shares of its common stock issuable under its 2008 Employee Stock Purchase Plan.
PREVIOUS FILINGS
The Company filed a Form S-8 Registration Statement with the Securities and Exchange Commission (“SEC”) on June 11, 2008 (File No. 333-151601) covering the registration of 50,000 shares of Common Stock under the Company’s 2008 Employee Stock Purchase Plan (the “2008 Purchase Plan”). The Company filed a second Form S-8 Registration Statement (File No. 333-190787) covering the registration of 50,000 additional shares of Common Stock under the 2008 Purchase Plan on August 23, 2013, filed a third Form S-8 Registration Statement with the SEC on December 17, 2014 (File No. 333-201012) covering an additional 50,000 shares of Common Stock under the 2008 Purchase Plan, and filed a fourth Form S-8 Registration Statement with the SEC on January 12, 2018 (File No. 333-222536) covering an additional 50,000 shares of Common Stock under the 2008 Purchase Plan. The contents of the prior Registration Statements are incorporated herein by reference.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. |
Incorporation of Documents By Reference. |
The documents listed in (a) through (c) below are incorporated by reference in this registration statement.
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(a) |
The registrant’s latest annual report on Form 10-K for the fiscal year ended September 30, 2020. |
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(b) |
The registrant’s quarterly reports on Form 10-Q for the fiscal quarters ended December 31, 2020 and March 31, 2021, the registrant’s current reports on Form 8-K filed on December 23, 2020, February 3, 2021, February 11, 2021, March 1, 2021, May 12, 2021 and May 13, 2021 and all other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the registrant document referred to in (a) above. |
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(c) |
The description of the class of securities contained in the registrant’s Exchange Act Registration Statement on Form 8-A, filed on April 20, 2000. |
All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date 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 of such documents. 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 subsequently filed document which also is 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.
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Item 4. |
Description of Securities. |
Not applicable.
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Item 5. |
Interests of Name Experts and Counsel. |
The legality of the issuance of the shares in this prospectus will be passed upon for the registrant by McBreen & Kopko LLP, Chicago, Illinois. Frederick H. Kopko, Jr., a member of that firm and a director of the registrant, beneficially owns 79,287 shares of the registrant’s Common Stock and has options and warrants to purchase 18,000 shares of the registrant’s Common Stock.
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Item 6. |
Indemnification of Directors and Officers. |
The Articles of Incorporation of the registrant limit the liability of directors, in their capacity as directors but not in their capacity as officers, to the fullest extent permitted by the Maryland General Corporation Law, or MGCL. Accordingly, pursuant to the terms of the MGCL as presently in effect, the registrant may indemnify any director unless it is established that:
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• |
the act or omission of the director was material to the matter giving rise to the proceeding and was committed in bad faith or was the result of active and deliberate dishonesty; |
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• |
the director actually received an improper personal benefit in money, property or services; |
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or in the case of any criminal proceeding, the director had reasonable cause to believe that the act or omission was unlawful. |
In addition, the Bylaws of the registrant require the registrant to indemnify each person who is or was a director or officer of the registrant to the fullest extent permitted by the laws of the State of Maryland in the event he is involved in legal proceedings by reason of the fact that he is or was a director or officer of the registrant, or is or was serving at the request of the registrant as a director, officer, employee or agent of another corporation, partnership or other enterprise. The registrant may also advance to such persons expenses incurred in defending a proceeding to which indemnification might apply, upon terms and conditions, if any, deemed appropriate by the Board of Directors upon receipt of an undertaking by or on behalf of such director or officer to repay all such advanced amounts if it is ultimately determined that he is not entitled to be indemnified as authorized by the laws of the State of Maryland. In addition, the registrant carries director and officer liability insurance.
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Item 8. |
Exhibits. |
Exhibit
Number Description
4.1 Articles of Amendment of Amended and Restated Articles of Incorporation, effective November 16, 2009, Amended and Restated Articles of Incorporation, effective January 26, 1998, and Articles of Amendment, effective April 9, 2000 (1)
4.2 Amended and Restated By-Laws of the Registrant (2)
5.1 Opinion of McBreen & Kopko LLP regarding the legality of the Common Stock registered hereby
23.1 Consent of McBreen & Kopko LLP (included in its opinion to be filed as Exhibit 5.1 hereto)
23.2 Consent of Wipfli LLP, independent registered public accounting firm
24.1 Power of Attorney (contained within Signature Page)
99.1 2008 Employee Stock Purchase Plan (3)
_______________________________________
(1) Filed as Exhibit No. 3.1 to the Annual Report on Form 10-K for the year ended September 30, 2009, and hereby incorporated by reference.
(2) Filed as Exhibit No. 3.1 to the Form 8-K filed on January 25, 2018, and hereby incorporated by reference.
(3) Filed as an exhibit to the company’s Proxy Statement on Form 14A dated December 28, 2020 and hereby incorporated by reference.
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Item 9. |
Undertakings. |
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(a) |
The undersigned registrant hereby undertakes: |
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1. |
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) |
To include any prospectus required by Section 10(a)(3) of the Act; |
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(ii) |
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of a prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement. |
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(iii) |
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement.
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2. |
That, for the purpose of determining any liability under the 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. |
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) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the 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 Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 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 Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe it meets all 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 Madison, State of Wisconsin, on this 13th day of April, 2021.
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Sonic Foundry, Inc. |
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By: |
/s/Joe Mozden Jr. |
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Joe Mozden Jr., Chief Executive Officer |
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Joe Mozden Jr. and Kenneth Minor as his true and lawful attorney-in-fact and agent 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 post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities Exchange Commission, granting unto said attorney-in-fact and agent 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 attorney-in-fact and agent or his substitutes or substitute may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:
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Signature |
Title |
Dated |
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/s/Joe Mozden Jr. |
Chief Executive Officer and Director (Principal Executive Officer) |
May_13, 2021 |
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Joe Mozden Jr. |
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/s/Kenneth A. Minor |
Interim Chief Financial Officer and Secretary (Principal Financial and Accounting Officer) |
May_13, 2021 |
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Kenneth A. Minor |
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/s/Mark D. Burish |
Chairman of the Board |
May_13, 2021 |
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Mark D. Burish |
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/s/Frederick H. Kopko, Jr. |
Director |
May_13, 2021 |
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Frederick H. Kopko, Jr. |
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/s/Nelson A. Murphy |
Director |
May_13, 2021 |
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Nelson A. Murphy |
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/s/Brian T. Wiegand |
Director |
May 13, 2021 |
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Brian T. Wiegand |
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/s/Taha Jangda |
Director |
May_13, 2021 |
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Taha Jangda |
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/s/William St. Lawrence |
Director |
May 13, 2021 |
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William St. Lawrence |
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Exhibit Index
Exhibit
Number Description
4.1 Articles of Amendment of Amended and Restated Articles of Incorporation, effective November 16, 2009, Amended and Restated Articles of Incorporation, effective January 26, 1998, and Articles of Amendment, effective April 9, 2000 (1)
4.2 Amended and Restated By-Laws of the Registrant (2)
5.1 Opinion of McBreen & Kopko LLP regarding the legality of the Common Stock registered hereby
23.1 Consent of McBreen & Kopko LLP (included in its opinion to be filed as Exhibit 5.1 hereto)
23.2 Consent of Wipfli LLP, independent registered public accounting firm
24.1 Power of Attorney (contained within Signature Page)
99.1 2008 Employee Stock Purchase Plan (3)
_______________________________________
(1) Filed as Exhibit No. 3.1 to the Annual Report on Form 10-K for the year ended September 30, 2009, and hereby incorporated by reference.
(2) Filed as Exhibit No. 3.1 to the Form 8-K filed on January 25, 2018, and hereby incorporated by reference.
(3) Filed as an exhibit to the company’s Proxy Statement on Form 14A dated December 28, 2020 and hereby incorporated by reference.
Exhibit 5.1
[OPINION OF MCBREEN & KOPKO, LLP]
May 13, 2021
Sonic Foundry, Inc.
222 West Washington Avenue
Madison, WI 53703
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel for Sonic Foundry, Inc., a Maryland corporation (the “Company”), in connection with a Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933 (the “Act”) on even date herewith, relating to the sale by the Company from time to time of up to 100,000 shares of Common Stock, $0.01 par value per share, of the Company (the “Shares”), issuable pursuant to the the Sonic Foundry, Inc. 2008 Employee Stock Purchase Plan (the “Plan”).
As the counsel to the Company in connection with the Registration Statement, we have examined the actions taken by the Company in connection with the authorization of the issuance of the Shares, and such documents as we have deemed necessary to render this opinion. In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or conformed copies and the authenticity of the originals of such copies. As to questions of fact material to this opinion, we have relied, without independent verification, upon certificates or comparable documents of public officials and of officers and representatives of the Company.
We have also assumed that (i) the Registration Statement and any amendments thereto (including post-effective amendments) have become effective and will continue to be effective at the time of the sale of any Shares, (ii) all Shares will be sold in the manner stated in the Registration Statement, and (iii) at the time of the sale of any Shares, there will not have occurred any changes in the law affecting the authorization, execution, delivery, validity or enforceability of the Shares.
Our opinion is limited to the general corporate laws of the State of Maryland and the federal laws of the United States of America and we express no opinion with respect to the laws of any other jurisdiction. No opinion is expressed herein with respect to the qualification of the Shares under the securities or blue sky laws of any state or any foreign jurisdiction.
Based upon and subject to the foregoing, it is our opinion that the Shares have been duly authorized and, upon issuance, delivery and payment therefor in accordance with the terms of the Plan, and any relevant agreements thereunder, will be validly issued, fully paid and non-assessable.
Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments which might affect any matters or opinions set forth herein.
We understand that you wish to file this opinion with the Commission as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Act, and we hereby consent thereto. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
Sincerely,
/s/ MCBREEN & KOPKO, LLP
/s/ MCBREEN & KOPKO, LLP
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our report dated December 22, 2020, with respect to the consolidated financial statements of Sonic Foundry, Inc. included in the Annual Report on Form 10-K for the year ended September 30, 2020, which is incorporated by reference in this Registration Statement. We consent to the incorporation by reference of the aforementioned report in this Registration Statement.
/s/ Wipfli LLP
Minneapolis, Minnesota
May 13, 2021