S-8

As filed with the Securities and Exchange Commission on April 6, 2016

Registration No.  333 -  

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

SPHERIX INCORPORATED

(Exact name of registrant as specified in its charter)

Delaware	52-0849320
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer identification No.)

1350 Ave of the Americas, 2^nd Floor, New York, NY 10019

(Address of principal executive offices) (Zip Code)

Spherix Incorporated 2014 Equity Incentive Plan

(full title of the plan)

Anthony Hayes

Chief Executive Officer

Spherix Incorporated

1350 Ave of the Americas, 2nd Floor

New York, NY 10019

(Name and address of agent for service)

Telephone: (703) 992-9260

(Telephone number, including area code, of agent for service)

With a copy to:

Theodore J. Ghorra, Esq.

Nixon Peabody LLP

437 Madison Avenue

New York, New York 10022

Telephone: (212) 940-3000

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	x	Smaller reporting company

CALCULATION OF REGISTRATION FEE

Title of Securities to be registered	Amount to be Registered(1)(2)		Proposed Maximum Offering Price per Security(3)		Proposed Maximum Aggregate Offering Price(3)		Amount of Registration Fee
Common Stock, $0.0001 par value to be issued under the 2014 Equity Incentive Plan		4,088,000	$	2.18	$	8,911,840	$	897.43
Total		4,088,000	$	2.18	$	8,911,840	$	897.43

(1)	Represents additional shares of common stock, par value $0.0001 per share (the “Common Stock”), of Spherix Incorporated (the “Registrant”) authorized for issuance under the Spherix Incorporated 2014 Equity Incentive Plan, as amended (the “2014 Plan”).
(2)	Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement on Form S-8 (this “Registration Statements”) shall also cover any additional shares of Common Stock that may be offered or issued under the Plan by reason of any stock dividend, stock split, recapitalization or any other similar transaction.

(3) Estimated pursuant to Rules 457(c) and 457(h) under the Securities Act solely for the purpose of calculating the registration fee, based on the average of the high and low prices of the Registrant’s common stock as reported on the NASDAQ Capital Market on March 15, 2016.

EXPLANATORY NOTE

REGISTRATION OF ADDITIONAL SECURITIES

This Registration Statement registers an additional 4,088,000 shares of the Registrant’s Common Stock that may be offered and sold under the Plan. This Registration Statement relates solely to the registration of additional securities of the same class as other securities for which one or more other registration statements filed on this form relating to the same employee benefit plan are effective. Pursuant to General Instruction E to Form S-8, the contents of the Registrant’s previously filed registration statement on Form S-8 relating to the Plan (File No. 333-197429), filed with the Securities and Exchange Commission on July 15, 2014, including any amendments thereto or filings incorporated therein, are hereby incorporated by reference herein to the extent not otherwise amended or superseded by the contents hereof.

On February 26, 2016, the Registrant held a special meeting (the “Special Meeting”) of its stockholders, which had been adjourned from February 22, 2016. At the Special Meeting, the Registrant’s stockholders voted affirmatively, among other things, to amend the 2014 Plan to increase the number of shares of Common Stock authorized to be issued pursuant to the 2014 Plan from 4,161,892 to 8,250,000 (disregarding the effect of the reverse stock split).

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 8.  Exhibits

EXHIBIT NUMBER	EXHIBITS
5.1	Opinion of Nixon Peabody LLP
23.1	Consent of Marcum LLP
23.2	Consent of Nixon Peabody LLP (included in Exhibit 5.1)
24.1	Power of Attorney (included on the signature page of this Registration Statement)

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 of an amendment to a filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized on April 6, 2016.

SPHERIX INCORPORATED

Date: April 6, 2016
	By:	/s/ Anthony Hayes
		Name: Anthony Hayes Title: Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Anthony Hayes 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 registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933 and any and all amendments (including post effective amendments) to this registration statement and to any registration statement filed pursuant to Rule 462(b), and to file same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each 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 foregoing, 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 either of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

In accordance with the requirement of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates stated:

Name	Position	Date
/s/ Anthony Hayes	Chief Executive Officer, Director	April 6, 2016
Anthony Hayes
/s/ Frank Reiner	Interim Chief Financial Officer	April 6, 2016
Frank Reiner
/s/ Robert J. Vander Zanden	Director, Chairman of the Board	April 6, 2016
Robert J. Vander Zanden
/s/ Howard E. Goldberg	Director	April 6, 2016
Howard E. Goldberg
/s/ Jeff Ballabon	Director	April 6, 2016
Jeff Ballabon
/s/ Tim Ledwick	Director	April 6, 2016
Tim Ledwick

EXHIBIT INDEX

EXHIBIT NUMBER	EXHIBITS
5.1	Opinion of Nixon Peabody LLP
23.1	Consent of Marcum LLP
23.2	Consent of Nixon Peabody LLP (included in Exhibit 5.1)
24.1	Power of Attorney (included on the signature page of this Registration Statement)

EX-5.1

Exhibit 5.1

437 Madison Avenue

New York, NY 10022-7039

212-940-3000

April 6, 2016

Spherix Incorporated

1350 Ave of the Americas, 2nd Floor

New York, NY 10019

Ladies and Gentlemen:

We refer to the Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), in the form in which it is to be filed on the date hereof by Spherix Incorporated, a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”), relating to the registration of up to 4,088,000 shares of Common Stock, par value $0.0001 per share, of the Company (the “Shares”), issuable under the 2014 Equity Incentive Plan, as amended (the “2014 Plan”).

We have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records and instruments as we have deemed necessary or advisable for the purpose of this opinion. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies and other electronic transmissions). We have also assumed that (i) valid book-entry notations for the issuance of the Shares in uncertificated form will have been duly made in the share register of the Company, (ii) each award agreement setting forth the terms of each award granted pursuant to the 2014 Plan is consistent with the 2014 Plan and has been duly authorized and validly executed and delivered by the parties thereto, and (iii) at the time of each issuance of Shares, there will be sufficient shares of Common Stock authorized for issuance under the Company’s Certificate of Incorporation that have not otherwise been issued or reserved or committed for issuance, and (iv) the price per share paid for Shares issued pursuant to the 2014 Plan is not less than the par value of the Shares. As to factual matters material to the opinions set forth below we have relied, without investigation, upon the representations and statements of the Company in the Registration Statement and in such certificates of government officials and officers of the Company as we have deemed necessary for the purpose of the opinions expressed herein. This opinion letter is given, and all statements herein are made, in the context of the foregoing.

 

This opinion letter is based as to matters of law solely on the Delaware General Corporation Law, and we express no opinion herein as to any other laws, statutes, ordinances, rules or regulations. As used herein, the term “General Corporation Law of the State of Delaware” includes the statutory provisions contained therein, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting such provisions.

Based upon and subject to the foregoing, and in reliance thereon, we are of the opinion that, when the Registration Statement has become effective under the Securities Act and the Shares have been issued and sold as provided under the 2014 Plan and any applicable award agreement, the Shares will be validly issued, fully paid and non-assessable by the Company.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not admit that any member of this firm is an “expert” within the meaning of the Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder.

This opinion is limited to the matters stated herein, and no opinion or belief is implied or may be inferred beyond the matters expressly stated herein. 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.

Very truly yours,

/s/ Nixon Peabody LLP

EX-23.1

Exhibit 23.1

Independent Registered Public Accounting Firm’s Consent

We consent to the incorporation by reference in this Registration Statement of Spherix Incorporated (the “Company”) on Form S-8 of our report, which includes an explanatory paragraph as to the Company’s ability to continue as a going concern, dated March 29, 2016, with respect to our audits of the consolidated financial statements of Spherix Incorporated and Subsidiaries as of December 31, 2015 and 2014 and for the years then ended appearing in the Annual Report on Form 10-K of Spherix Incorporated for the year ended December 31, 2015.

/s/ Marcum LLP

Marcum LLP

New York, NY

April 6, 2016