Blueprint
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As filed with the Securities Exchange Commission on October 4,
2017
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Registration No. 333-
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UNITED STATES
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SECURITIES AND EXCHANGE COMMISSION
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Washington, D.C. 20549
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FORM S-8
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REGISTRATION STATEMENT
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UNDER
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THE
SECURITIES ACT OF 1933
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FREEDOM HOLDING CORP.
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(Exact name of registrant as specified in its charter)
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Nevada
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30-0233726
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(State
or other jurisdiction of
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(I.R.S.
Employer
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incorporation or organization)
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Identification No.)
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Office 1704, 4B Building
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“Nurly Tau” BC
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17 Al Farabi Ave
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Almaty, Kazakhstan
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050059
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(Address
of principal executive offices)
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(Zip
code)
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Freedom Holding Corp. 2018 Equity Incentive Plan
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(Full
title of the plans)
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Evgeniy Ler
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Chief Financial Officer
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“Nurly Tau” BC
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17 Al Farabi Ave
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Almaty, Kazakhstan
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(801) 355-2227
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(Name,
address and telephone number, including area code of agent for
service)
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Copies to:
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Ronald L. Poulton
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Poulton & Yordan
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324 South 400 West, Suite 250
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Salt Lake City, Utah 84101
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(801) 355-1341
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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. (Check
one):
Large
accelerated filer [
]
Accelerated filer [ ]
Non-accelerated
filer [
]
Smaller reporting company [X]
(Do not
check if a smaller reporting company) Emerging growth company [
]
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CALCULATION OF REGISTRATION FEE
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Title of securities
to be registered
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Amount
to be registered(1)
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Proposed maximum offering price
per share(2)
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Proposed
maximum
aggregate offering price
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Amount of
registration fee
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Common
Stock, par value $0.001 per share
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5,000,000
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$1.94
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$9,700,000
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$1,207.65
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(1)
Pursuant to Rule
416(a) under the Securities Act of 1933, as amended (the
“Securities Act”), this Registration Statement shall
also cover any additional shares of the Registrant’s Common
Stock that may be offered or issued under the Freedom Holding Corp.
2018 Equity Incentive Plan by reason of any stock dividend, stock
split, recapitalization or any similar transaction effected without
receipt of consideration.
(2)
Estimated solely
for purposes of calculating the registration fee. The fee is
calculated pursuant to Rules 457(c) and 457(h) under the Securities
Act. The fee for the Common Stock was calculated on the basis of
the last sale price of the Common Stock over-the-counter as
reported by the OTC Pink Market on October 3, 2017.
EXPLANATORY NOTE
This
Registration Statement on Form S-8 (the “Registration
Statement”) is being filed to register: (i) 5,000,000 shares
of the Registrant’s common stock, par value $0.001 per share
(“Common Stock”) issuable
pursuant to the Registrant’s 2018 Equity Incentive Plan (the
“Plan”).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
information specified in Item 1 and Item 2 of Part I of Form S-8 is
omitted from the Registration Statement in accordance with the
provisions of Rule 428 under the Securities Act, and the
introductory note to Part I of Form S-8. The documents containing
the information specified in Part I of Form S-8 will be delivered
to the participants in the Plan as required by Rule 428(b) under
the Securities Act. Such documents are not required to be, and are
not, filed with the Securities and Exchange Commission (the
“Commission”) either as part of this Registration
Statement or as a Section 10(a) prospectus or prospectus supplement
pursuant to Rule 424 of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
In this Registration Statement, Freedom Holding Corp. (formerly
known as BMB Munai, Inc.), is sometimes referred to as
“Registrant,” “we,” “us” or
“our.”
Item
3. Incorporation of Documents by Reference.
The
Commission allows us to “incorporate by reference” the
information we file with them, which means that we can disclose
important information to you by referring to those documents. The
information incorporated by reference is considered to be part of
this Registration Statement, and later information filed with the
Commission will update and supersede this information. We hereby
incorporate by reference into this Registration Statement the
following documents previously filed with the SEC:
(i)
Our Annual Report
on Form 10-K for the fiscal years ended March 31, 2017 and 2016,
filed with the Commission on June 30, 2017;
(ii)
Our Quarterly
Report on Form 10-Q for the quarterly period ended June 30, 2017,
filed with the Commission on August 14, 2017;
(iii)
Our Current Reports
on Form 8-K filed with the Commission on September 5, 2017, and
September 12, 2017;
(iv)
Our Definitive
Information Statement on Schedule 14C filed with the Commission on
August 11, 2017; and
(v)
The description of
our capital stock contained in the our Registration Statement on
Form S-3 filed with the Commission on October 25, 2007, including
any amendment or report filed by the Company for the purpose of
updating or modifying such description.
Except
to the extent that information is deemed furnished and not filed
pursuant to securities laws and regulations, all documents filed
with the Commission by the Registrant pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof and prior to the filing of a post-effective amendment to
this Registration Statement that indicates that all securities
offered hereby have been sold or that deregisters all securities
then remaining unsold shall also be deemed to be incorporated by
reference herein and to be a part hereof from the dates of filing
of such documents.
Any
statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
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.
Under
no circumstances shall any information furnished under Item 2.02 or
7.01 of Form 8-K be deemed incorporated herein by reference unless
such Form 8-K expressly provides to the contrary.
Item 4. Description of Securities.
Not
applicable.
Item 5. Interests of Named Experts and Counsel.
Not
applicable.
Item 6. Indemnification of Directors and Officers.
Our
Articles of Incorporation, as filed with the Nevada Secretary of
State on November 30, 2004, indicate that we shall indemnify (a)
our directors to the fullest extent permitted by the laws of the
State of Nevada, including the advancement of expenses underthe
procedures provided by such laws, (b) all of our officers to the
same extent as we shall indemnify our directors, and (c) our
officers who are not directors to such further extent as shall be
authorized by the Board of Directors and be consistent with law.
The indemnification provisions of our Articles of Incorporation
have been unchanged by subsequent amendments.
Section
78.7502 of the Nevada Revised Statutes (the “NRS”)
provides for discretionary and mandatory indemnification of
officers, directors, employees and agents. Following is the text of
Section 78.7502:
1.
A corporation 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 corporation, by reason of the fact that the person 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,
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 the
person:
(a) Is
not liable pursuant to NRS 78.138; or
(b)
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
corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the conduct was
unlawful.
The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its
equivalent, does not, of itself, create a presumption that the
person is liable pursuant to NRS 78.138 or did not act 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 corporation, or that,
with respect to any criminal action or proceeding, he or she had
reasonable cause to believe that his conduct was
unlawful.
2. A
corporation 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 corporation 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
corporation, or is or was serving at the request of the corporation
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 the
person:
(a) Is
not liable pursuant to NRS 78.138; or
(b)
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
corporation.
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,
after exhaustion of all appeals therefrom, to be liable to the
corporation or for amounts paid in settlement to the corporation,
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.
3.
To the extent that a director, officer, employee or agent of
a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in
subsections 1 and 2, or in defense of any claim, issue or matter
therein, the corporation shall indemnify him or her against
expenses, including attorneys’ fees, actually and reasonably
incurred by him or her in connection with the defense.
Section
78.751 of the NRS describes the authorization required for
discretionary indemnification and the limitations on
indemnification and the advancement of expenses. Following is the
text of Section 78.751:
1.
Any discretionary indemnification pursuant to NRS 78.7502,
unless ordered by a court or advanced pursuant to subsection 2, may
be made by the corporation only as authorized in the specific case
upon a determination that indemnification of the director, officer,
employee or agent is proper in the circumstances. The determination
must be made:
(a) By
the stockholders;
(b) By
the board of directors by majority vote of a quorum consisting of
directors who were not parties to the action, suit or
proceeding;
(c) If
a majority vote of a quorum consisting of directors who were not
parties to the action, suit or proceeding so orders, by independent
legal counsel in a written opinion; or
(d) If
a quorum consisting of directors who were not parties to the
action, suit or proceeding cannot be obtained, by independent legal
counsel in a written opinion.
2.
The articles of incorporation, the bylaws or an agreement
made by the corporation may provide that the expenses of officers
and directors incurred in defending a civil or criminal action,
suit or proceeding must be paid by the corporation as they are
incurred and in advance of the final disposition of the action,
suit 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 by a court of competent jurisdiction that the director
or officer is not entitled to be indemnified by the corporation.
The provisions of this subsection do not affect any rights to
advancement of expenses to which corporate personnel other than
directors or officers may be entitled under any contract or
otherwise by law.
3.
The indemnification pursuant to NRS 78.7502 and advancement
of expenses authorized in or ordered by a court pursuant to this
section:
(a)
Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under
the articles of incorporation or any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, for either an
action in the person’s official capacity or an action in
another capacity while holding office, except that indemnification,
unless ordered by a court pursuant to NRS 78.7502 or for the
advancement of expenses made pursuant to subsection 2, 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. A right to indemnification or to advancement of
expenses arising under a provision of the articles of incorporation
or any bylaw is not eliminated or impaired by an amendment to such
provision after the occurrence of the act or omission that is the
subject of the civil, criminal, administrative or investigative
action, suit or proceeding for which indemnification or advancement
of expenses is sought, unless the provision in effect at the time
of such act or omission explicitly authorizes such elimination or
impairment after such action or omission has occurred.
(b)
Continues for a person who has ceased to be a director, officer,
employee or agent and inures to the benefit of the heirs, executors
and administrators of such a person.
Our
bylaws provide that we will indemnify our directors and executive
officers, and may indemnify our other officers, employees and
agents, to the fullest extent permitted by Nevada Law. Under our
bylaws, we are also empowered to purchase insurance on behalf of
any person whom we are required or permitted to
indemnify.
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,
we have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore,
unenforceable.
The
rights of indemnification described above are not exclusive of any
other rights of indemnification to which the persons indemnified
may be entitled under any bylaw, agreement, vote of stockholders or
directors, or otherwise.
The
foregoing description is necessarily general and does not describe
all details regarding the indemnification of officers, directors,
or controlling persons of the Registrant.
Item 7. Exemption from Registration Claimed.
Not
applicable.
Item 8. Exhibits.
The
exhibits to this Registration Statement are listed on the Exhibit
Index, which appears elsewhere herein and is incorporated herein by
reference.
Item 9. Undertakings.
(a) The
undersigned Registrant hereby undertakes:
(1) To file,
during any period in which offers or sales are being made, a
post-effective amendment to this Registration
Statement:
(i) To include any
prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) To
reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the Registration Statement; and
(iii) To
include any material information with respect to the plan of
distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided however, that the undertakings
set forth in paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in the 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 this Registration
Statement.
(2) That, for the
purpose of determining any liability under the Securities Act, each
such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from
registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination
of the offering.
(b) The
undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the Registrant’s annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act 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 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
this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Almaty,
Republic of Kazakhstan, on October 4, 2017.
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FREEDON HOLDING CORP.
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By:
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/s/ Timur Turlov
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Timur Turlov
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Chairman and Chief Executive Officer
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POWER OF ATTORNEY
Each
person whose signature appears below appoints each of Timur Turlov
and Evgeniy Ler, jointly and severally, his attorneys-in-fact, each
with full power of substitution for such person in any and all
capacities, to sign this Registration Statement, and any amendments
thereto, (including post-effective amendments), and to file the
same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorneys-in-fact, his
substitute or substitutes, 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 below by the following
persons on behalf of the Registrant in the capacities and on the
dates indicated.
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Signatures
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Capacity in which Signed
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Date
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/s/ Timur Turlov
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Chairman and Chief Executive Officer
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October 4, 2017
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Timur Turlov
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(principal executive officer)
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/s/ Evgeniy Ler
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Chief Financial Officer
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October 4, 2017
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Evgeniy Ler
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(principal financial and accounting officer)
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/s/ Jason Kerr
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Director
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October 4, 2017
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Jason Kerr
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/s/ Arkady Rahkilkin
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Director
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October 4, 2017
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Arkady Rahkilkin
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/s/ Leonard Stillman
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Director
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October 4, 2017
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Leonard Stillman
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/s/ Askar Tashtitov
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Director
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October 4, 2017
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Askar Tashtitov
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EXHIBIT INDEX
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Exhibit
Number
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Incorporated by Reference
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Filed or Furnished Herewith
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Exhibit Description
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Form
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Exhibit
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Filing Date
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Articles
of Incorporation
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8-K
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3.01
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01/18/05
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Amendment
to Articles of Incorporation
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8-K
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3.01
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06/26/06
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Amendment
to Articles of Incorporation
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8-K
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3.01
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09/05/17
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By-Laws
of BMB Munai, Inc. (as amended through July 8, 2010)
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8-K
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3.1
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07/13/10
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Specimen
Common Stock certificate
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Opinion
of Poulton & Yordan
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X
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Consent
of WSRP, LLC
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X
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Consent
of Poulton & Yordan (included in Exhibit 5.1)
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X
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24.01
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Power
of Attorney (included on the signature page hereto)
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X
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Freedom
Holding Corp. 2018 Equity Incentive Plan
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X
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Form of
Restricted Stock Grant Award Agreement
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X
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Form of
Nonqualified Stock Option Agreement
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X
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