Securities Registration: Employee Benefit Plan (s-8)
08 May 2018 - 6:46AM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Spark
Networks SE
(Exact name of Registrant as specified in its charter)
Germany
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Not Applicable
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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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c/o Affinitas GmbH
Kohlfurter Straße 41/43
Berlin 10999
Germany
(+49) 30 868 000 102
(Address and telephone number of Registrant’s
principal executive offices)
2018 Spark Networks SE
Virtual Stock Option Plan
(Full Title of the Plan)
Puglisi & Associates
850 Library Avenue
Suite 204
Newark, DE 19711
(302) 738-6680
Attention: Service of Process Department
(Name and address of agent for service)
(786) 509-6900
(Telephone number, including area code, of agent for service)
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. (Check one):
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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x
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Smaller reporting company
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¨
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Emerging growth company
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x
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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.
C
ALCULATION OF REGISTRATION FEE
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(2)
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Amount of
registration
fee(3)
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Ordinary shares, no-par value, of Spark Networks SE
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70,000
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$
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131.30
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$
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9,191,000.00
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$
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1,144.28
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration
Statement also covers an additional indeterminable number of ordinary shares of Spark Networks SE (the “Registrant”),
no-par value (“Ordinary Shares”), that may become issuable under the 2018 Spark Networks SE Virtual Stock Option Plan
(the “VSOP”), as may be necessary to adjust the number of Ordinary Shares being offered or issued pursuant to the VSOP
as a result of stock splits, stock dividends or similar transactions. Each ADS represents the right to receive 0.1 Ordinary Shares.
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(2)
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Estimated in accordance with Rules 457(c) and (h) under the Securities Act solely for the purpose of calculating the registration
fee. The proposed maximum offering price per share and proposed maximum aggregate offering price are based on the average of the
high and low sales prices of the Registrant’s American Depository Shares (“ADSs”) as reported on the NYSE American
on May 3, 2018, which was $13.12 per ADS. Each ADS represents the right to receive 0.1 Ordinary Shares. Accordingly, the per share
registration fee for the registration of Ordinary Shares set forth above is calculated by multiplying $13.13 by 10.
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(3)
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Determined in accordance with Section 6(b) of the Securities Act at a rate equal to $124.50 per $1,000,000 of the proposed
maximum aggregate offering price.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A)
PROSPECTUS
Item 1. Plan
Information*
Item 2. Registrant
Information and Employee Plan Annual Information*
* Information
required by Part I to be contained in a Section 10(a) prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the Note to Part I of Form S-8.
Upon written or oral request, the Registrant will provide, without
charge, the documents incorporated by reference in Item 3 of Part II of this registration statement. The Registrant also will provide
without charge, upon written or oral request, other documents required to be delivered to employees pursuant to Rule 428(b) under
the Securities Act. Requests for the above mentioned information should be directed to: Spark Networks SE, Attention: Michael Schrezenmaier,
Chief Operating Officer, telephone number Tel: (+49) 30 868 000 102.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation
of Documents by Reference
The following documents previously filed by the Registrant with
the Securities and Exchange Commission (the “Commission”) are incorporated by reference in this Registration Statement:
1. Spark
SE’s Annual Report for the fiscal year ended December 31, 2017 on Form 20-F filed on April 25, 2018; and
2. The
description of the Ordinary Shares and American Depositary Shares included in the Form F-4 Registration Statement, which description
is incorporated by reference into the Form 8-A (File No. 001-38252) filed with the Commission on October 20, 2017, pursuant to
the Exchange Act, and any amendment or report filed for the purpose of updating such description.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act of 1934, as amended (the “Exchange Act”) prior
to the filing of a post-effective amendment 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 a part
hereof from the date of filing of such documents.
Item 4. Description
of Securities.
Not Applicable.
Item 5. Interests
of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification
of Directors and Officers
Under German law, Spark SE may not, as a general matter, indemnify
the members of its administrative board or the Spark SE managing directors to the extent such indemnification is related to a breach
of duty of care as a member of the administrative board or Spark SE managing director, respectively.
Subject to the provisions of section 16, paragraph 4 of its
Articles of Association, Spark SE may purchase and maintain insurance for or for the benefit of any person who is or was member
of the administrative board of the Registrant, including insurance against any loss or liability or any expenditure he or she may
incur, whether in connection with any proven or alleged act or omission in the actual or purported execution or discharge of his
or her duties.
The receipt of any such benefit shall not disqualify any person
from being or becoming a Registrant administrative board member.
Item 7. Exemption
from Registration Claimed
Not applicable.
Item 8. Exhibits
See Exhibit Index on page 6.
Item 9. Undertakings
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(a)
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The Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made of the securities registered hereby, 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 this 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 a 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and
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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 this Registration
Statement or any material change to such information in this Registration Statement; provided, however, that the undertakings set
forth in paragraphs (1)(i) and (1)(ii) above 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)
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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 Registrant hereby further 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 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,
unless in the opinion of its counsel the matter has been settled by controlling precedent, will 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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EXHIBIT INDEX
* Filed herewith
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Berlin, Country
of Germany, on May 7, 2018.
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SPARK NETWORKS SE
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By:
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/s/ Robert O’Hare
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Name: Robert O’Hare
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Title: Chief Financial Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints Jeronimo Folgueira, Robert O’Hare and Michael Schrezenmaier, and each of them acting
individually, his true and lawful attorney-in-fact and agent with 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 on Form S-8, and to file the same, with all exhibits thereto, and all documents in connection therewith,
with the 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 to comply with the provisions of the Securities Act and all requirements of the Commission,
hereby ratifying and confirming all that said attorney-in-fact, or his or her substitute, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and on the date indicated:
Signatures
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Title
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Date
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/s/ Jeronimo Folgueira
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Managing Director (Principal Executive Officer) and Member of the Administrative Board
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May 7, 2018
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Jeronimo Folgueira
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/s/ Robert O’Hare
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Managing Director (Principal Financial Officer)
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May 7, 2018
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Robert O’Hare
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/s/ Bradley J. Goldberg
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Member of the Administrative Board
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May 7, 2018
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Bradley J. Goldberg
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/s/ David Khalil
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Member of the Administrative Board
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May 7, 2018
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David Khalil
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/s/ Colleen Birdnow Brown
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Member of the Administrative Board
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May 7, 2018
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Colleen Birdnow Brown
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/s/ Joshua Keller
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Member of the Administrative Board
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May 7, 2018
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Joshua Keller
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/s/ Axel Hefer
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Member of the Administrative Board
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May 7, 2018
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Axel Hefer
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/s/ Donald J. Puglisi
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Authorized Representative in the United States
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May 7, 2018
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Donald J. Puglisi
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Title: Managing Director, Puglisi & Associates
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