Blueprint
As filed with the Securities and Exchange Commission on March 28,
2019
Registration No. 333-147354
Registration
No. 333-218765
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
Post-Effective Amendment No. 3 to Form S-8 Registration Statement
No. 333-147354
Post-Effective Amendment No. 1 to Form S-8 Registration Statement
No. 333-218765
FORM S-8 REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BK TECHNOLOGIES CORPORATION
(Exact
Name of Registrant as Specified in Its Charter)
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Nevada
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83-4064262
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(State or Other
Jurisdiction of Incorporation or Organization)
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(I.R.S. Employer
Identification No.)
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7100
Technology Drive
West Melbourne, Florida 32904
(Address
of Principal Executive Offices, Including Zip Code)
2007 Incentive Compensation Plan
2017 Incentive Compensation Plan
(Full
Title of the Plans)
William P. Kelly
Executive Vice President and Chief Financial Officer
BK Technologies Corporation
7100 Technology Drive
West Melbourne, Florida 32904
(321)
984-1414
___________________________________________________________________
(Name,
Address, and Telephone Number, Including Area Code, of Agent For
Service)
With a copy
to:
Jurgita Ashley
Thompson Hine LLP
3900 Key Center
127 Public Square
Cleveland, Ohio 44114
(216) 566-8928
________________________________________________________________
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.
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Large
accelerated filer
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☐
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Accelerated
filer
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☐
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Non-accelerated
filer
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☑
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Smaller
reporting company
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☑
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Emerging
growth company
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☐
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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.
☐
EXPLANATORY STATEMENT
BK
Technologies Corporation, a Nevada corporation (the
“Company” or the “Registrant”), is
filing these Post-Effective
Amendments relating to the following Registration Statements on
Form S-8 (together, the “Registration Statements”) as
the successor registrant to BK Technologies, Inc., a Nevada
corporation (the “Predecessor Company”), in connection
with the holding company reorganization of the Predecessor Company
(the “Reorganization”):
●
File No.
333-147354, pertaining to the registration of 800,000 shares of
common stock, par value $0.60 per share, of the Predecessor Company
(“Common Stock”), issued or issuable pursuant to the
Predecessor Company’s 2007 Incentive Compensation Plan (the
“2007 Plan”) and, as amended, 2017 Incentive
Compensation Plan (the “2017 Plan” and, together with
the 2007 Plan, the “Plans”), and such additional Common
Stock as may be issuable pursuant to the Plans as a result of stock
splits, stock dividends and similar transactions, which
registration statement was filed with the U.S. Securities and
Exchange Commission (the “Commission”) and became
effective on November 13, 2007, as amended on August 2, 2012 and
June 15, 2017; and
●
File No.
333-218765, pertaining to the registration of 1,000,000 shares of
Common Stock, issued or issuable pursuant to the 2017 Plan, and
such additional Common Stock as may be issuable pursuant to the
2017 Plan as a result of stock splits, stock dividends and similar
transactions, which registration statement was filed with the
Commission and became effective on June 15, 2017.
The
Reorganization was completed on March 28, 2019, pursuant to the
Agreement and Plan of Merger (the “Merger Agreement”),
dated March 28, 2019, by and among the Company, the Predecessor
Company and another newly-formed Nevada corporation wholly owned by
the Company (“MergerSub”). As a result of the
Reorganization, the Predecessor Company became a wholly-owned
subsidiary of the Company, and the Company became the successor
issuer to the Predecessor Company pursuant to and under the
Securities Act of 1933, as amended (the “Securities
Act”), and the Securities Exchange Act of 1934, as amended
(the “Exchange Act”).
Following the
Reorganization, each issued and outstanding share of Common Stock
automatically converted into one share of common stock of the
Company (“Successor Common Stock”). In connection with
the Reorganization, the Company assumed the Plans and all of the
outstanding equity awards under such Plans. Each outstanding equity
award assumed by the Company is issuable upon the same terms and
conditions as were in effect immediately prior to the completion of
the Reorganization, except that all such equity awards now entitle
the holder thereof to acquire Successor Common Stock.
In
accordance with Rule 414 under the Securities Act, the Company
hereby expressly adopts the Registration Statements as its own
registration statements (except as specifically amended by these
Post-Effective Amendments) for all purposes of the Securities Act
and the Exchange Act. These Post-Effective Amendments set forth
additional information necessary to reflect any material changes
made in connection with or resulting from the Reorganization, or
necessary to keep the Registration Statements from being misleading
in any material respect. Other than certain updates related to the
passage of time, no other changes or additions are being made
hereby to the prospectuses that form a part of the Registration
Statements. These Post-Effective Amendments shall become effective
immediately upon filing with the Commission pursuant to Rule 462
under the Securities Act.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
Registrant has sent or given, or will send or give, documents
containing the information specified by Part I of the Registration
Statement to participants in the Plans, as specified in Rule
428(b)(1) promulgated by the Commission under the Securities Act.
Such documents need not be filed with the Commission, but these
documents constitute (along with the documents incorporated by
reference into the Registration Statements pursuant to Item 3 of
Part II hereof) 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, which were previously filed with the
Commission by the Predecessor Company and the Registrant, are
hereby incorporated by reference (except for the portions of the
Predecessor Company’s or the Registrant’s Current
Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01
thereof or otherwise not filed with the Commission, which are
deemed not to be incorporated by reference into the Registration
Statement):
1.
The Predecessor
Company’s Annual Report on Form 10-K for the
Registrant’s fiscal year ended December 31,
2018;
2.
The Predecessor
Company’s Current Reports on Form 8-K filed with the
Commission on January 25, 2019, February 27, 2019 (other than the
portions of such document not deemed to be filed), February 28,
2019 (other than the portions of such document not deemed to be
filed), March 6, 2019, March 7, 2019, March 11, 2019 and March 21,
2019 and the Registrant’s Current Report on Form 8-K filed
with the Commission on March 28, 2019; and
3.
The description of
the Predecessor Company’s Common Stock contained in the
Predecessor Company’s Registration Statements filed with the
Commission pursuant to Section 12 of the Exchange Act, including
any amendments or reports filed for the purpose of updating that
description.
In
addition, all documents subsequently filed by the Registrant with
the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Exchange Act (other than those furnished pursuant to Item 2.02
or Item 7.01 of Form 8-K or other information
“furnished” to the Commission), prior to the filing of
a post-effective amendment to the applicable 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 the Registration Statements and
to be part hereof from the time of filing of such documents. Any
statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or
superseded for purposes of the Registration Statements to the
extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement.
Item
4.
Description
of Securities.
The
securities to be offered are registered under Section 12 of the
Exchange Act and, accordingly, no description is provided
hereunder.
Item
5.
Interests
of Named Experts and Counsel.
Not
applicable.
Item
6.
Indemnification
of Directors and Officers.
The
Registrant is incorporated under the laws of the State of Nevada.
Section 78.138 of the Nevada Revised Statutes (“NRS”)
provides that, subject to certain exceptions under Nevada law,
unless the articles of incorporation or an amendment thereto
provide for greater individual liability, a director or officer is
not individually liable to the Registrant or its stockholders or
creditors for any damages as a result of any act or failure to act
in his or her capacity as a director or officer unless it is proven
that (i) the director’s or officer’s act or failure to
act constituted a breach of his or her fiduciary duties as a
director or officer and (ii) the breach of those duties involved
intentional misconduct, fraud or a knowing violation of law. The
Registrant’s Bylaws further provide that a director shall not
be personally liable for monetary damages for any action taken, or
failure to take any action, unless (a) the director breached or
failed to perform the duties of his or her office as provided in
the NRS; and (b) the breach or failure to perform constituted
self-dealing, willful misconduct or recklessness. In addition, the
Registrant’s Articles provide that the personal liability of
the directors of the Registrant is eliminated to the fullest extent
permitted by the NRS.
Under
Section 78.7502 of the NRS, the Registrant 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, except an
action by or in the right of the Registrant, by reason of the fact
that the person is or was a director, officer, employee or agent 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, joint venture, trust or other enterprise,
against expenses, including attorneys’ fees, judgments, fines
and amounts paid in settlement actually and reasonably incurred by
the person in connection with the action, suit or proceeding if
such person: (i) is not liable pursuant to Section 78.138 of the
NRS; or (ii) acted in good faith and in a manner which he or she
reasonably believed to be in or not opposed to the best interests
of the Registrant, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the conduct was
unlawful. Further, the Registrant 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 Registrant to procure a judgment in its favor by reason of
the fact that the person is or was a director, officer, employee or
agent 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, joint venture, trust or other enterprise
against expenses, including amounts paid in settlement and
attorneys’ fees actually and reasonably incurred by the
person in connection with the defense or settlement of the action
or suit if such person: (i) is not liable pursuant to NRS Section
78.138; or (ii) acted in good faith and in a manner which he or she
reasonably believed to be in or not opposed to the best interests
of the Registrant. However, indemnification may not be made for any
claim, issue or matter as to which such a person has been adjudged
by a court of competent jurisdiction to be liable to the Registrant
or for amounts paid in settlement to the Registrant, unless and
only to the extent that the court in which the action or suit was
brought or other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case, the
person is fairly and reasonably entitled to indemnity for such
expenses as the court deems proper. To the extent that a director,
officer, employee or agent of the Registrant has been successful on
the merits or otherwise in defense of any action, suit or
proceeding subject to the Nevada indemnification laws, or in
defense of any such claim, issue or matter, the Registrant is
required to indemnify him or her against expenses, including
attorneys’ fees, actually and reasonably incurred by him or
her in connection with the defense. The Registrant’s Articles
and Bylaws comply with the Nevada law as set forth
above.
As
permitted by Nevada law, the Registrant’s Bylaws authorize
the Registrant to advance expenses (including attorneys’
fees) incurred by a director or officer in defending any civil or
criminal action or proceeding in advance of the final disposition
of the action or proceeding upon receipt of an undertaking by or on
behalf of the director or officer to repay the amount if it is
ultimately determined that the director or officer is not entitled
to be indemnified by the Registrant.
Indemnification,
unless ordered by a court pursuant to Section 78.7502 of the NRS or
for the advancement of expenses as described above, may not be made
to or on behalf of any director or officer if a final adjudication
establishes that the director’s or officer’s acts or
omissions involved intentional misconduct, fraud or a knowing
violation of the law and was material to the cause of
action.
The
Registrant is authorized under Nevada law to purchase and maintain
insurance or make other financial arrangements on behalf of any
person who is or was a director, officer, employee or agent 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, joint venture, trust or other enterprise, for any
liability asserted against him or her and liability and expenses
incurred by him or her in his or her capacity as a director,
officer, employee or agent, or arising out of his or her status as
such, whether or not the Registrant has the authority to indemnify
him or her against such liability and expenses.
Under
the terms of the Registrant’s directors’ and
officers’ liability and company reimbursement insurance
policies, directors and officers of the Registrant are insured
against certain liabilities, including liabilities arising under
the Securities Act.
Item
7.
Exemption
from Registration Claimed.
Not
applicable.
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Exhibit Number
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Description
of Exhibit
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Articles of
Incorporation (incorporated by reference to Exhibit 3.2 to the
Registrant’s Current Report on Form 8-K12B filed March 28,
2019).
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Bylaws
(incorporated by reference to Exhibit 3.3 to the Registrant’s
Current Report on Form 8-K12B filed March 28, 2019).
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Opinion
of Thompson Hine LLP.
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Consent
of Moore Stephens Lovelace, P.A.
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Consent
of Thompson Hine LLP (included in legal opinion filed as Exhibit
5.1).
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Power
of Attorney.
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2007
Incentive Compensation Plan (incorporated by reference from Annex G
to the Predecessor Company’s Definitive Proxy Statement on
Schedule 14A filed April 5, 2007, relating to the 2007 annual
stockholders’ meeting).
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Amendment to the 2007 Incentive Compensation Plan,
effective as of March 17, 2017 (incorporated by reference from
Exhibit 10.1 to the Predecessor Company’s Current Report on Form 8-K filed
March 21, 2017).
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Form of 2007 Incentive Compensation Plan Stock
Option Agreement (incorporated by reference from Exhibit
10.15 to the Predecessor Company’s Annual Report on Form 10-K
for the year ended December 31, 2012).
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2017
Incentive Compensation Plan (incorporated by reference from Exhibit
4.5 to the Predecessor Company’s Registration Statement on
Form S-8 filed June 15, 2017).
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Form of
Stock Option Agreement under the 2017 Incentive Compensation Plan
(incorporated by reference to Exhibit 10.2 to the
Registrant’s Current Report on Form 8-K12B filed March 28,
2019).
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Form of
Restricted Share Agreement under the 2017 Incentive Compensation
Plan (incorporated by reference to Exhibit 10.3 to the
Registrant’s Current Report on Form 8-K12B filed March 28,
2019).
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Form of
Restricted Stock Unit Agreement under the 2017 Incentive
Compensation Plan (incorporated by reference to Exhibit 10.4 to the
Registrant’s Current Report on Form 8-K12B filed March 28,
2019).
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Form of
Non-Employee Director Restricted Share Unit Agreement under 2017
Incentive Compensation Plan (September 2018) (incorporated by
reference to Exhibit 10.1 to the Predecessor Company’s
Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 2018).
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Omnibus
Amendment to Incentive Compensation Plans, dated as of March 28,
2019, by and between BK Technologies, Inc. and BK Technologies
Corporation (incorporated by reference to Exhibit 10.1 to the
Registrant’s Current Report on Form 8-K12B filed March 28,
2019).
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(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 each 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
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 Commission 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 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 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 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.
(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 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
Commission 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.
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
these Post-Effective Amendments to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of West
Melbourne, State of Florida, on the 28th day of March,
2019.
BK
TECHNOLOGIES CORPORATION
By:
/s/ Timothy A.
Vitou
Timothy
A. Vitou
President
Pursuant to the
requirements of the Securities Act of 1933, these
Post-Effective Amendments have been signed by the following persons
in the capacities and on the date indicated.
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Name
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Title
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Date
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/s/
Timothy A. Vitou
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President
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March
28, 2019
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Timothy A.
Vitou
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(Principal Executive Officer)
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/s/
William P. Kelly
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Executive
Vice President and Chief Financial Officer
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March
28, 2019
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William P.
Kelly
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(Principal
Financial Officer and Principal Accounting
Officer)
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/s/ D.
Kyle Cerminara*
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Chairman
of the Board of Directors and Director
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March
28, 2019
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D. Kyle
Cerminara
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/s/
Lewis M. Johnson*
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Co-Chairman
of the Board of Directors and Director
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March
28, 2019
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Lewis M.
Johnson
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/s/
Michael R. Dill*
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Director
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March
28, 2019
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Michael R.
Dill
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/s/
Charles T. Lanktree*
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Director
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March
28, 2019
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Charles T.
Lanktree
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/s/ E.
Gray Payne*
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Director
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March
28, 2019
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E. Gray
Payne
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/s/
John W. Struble*
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Director
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March
28, 2019
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John W.
Struble
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/s/
Ryan R.K. Turner*
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Director
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March
28, 2019
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Ryan R.K.
Turner
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*By:
/s/
William P. Kelly
William P. Kelly
