Securities Registration: Employee Benefit Plan (s-8)
19 August 2021 - 6:31AM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on August 18, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
Under The Securities
Act of 1933
ACUITYADS HOLDINGS INC.
(Exact Name of Registrant as Specified in Its Charter)
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Canada
(State or Other Jurisdiction
of Incorporation
or Organization)
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Not applicable
(I.R.S. Employer Identification No.)
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70 University Ave.,
Suite 1200, Toronto, Ontario M5J 2M4
(Address of Principal Executive Offices Including
Zip Code)
AcuityAds Holdings
Inc. Omnibus Long-Term Incentive Plan
(Full Title of the Plan)
CT Corporation System
28 Liberty Street
New York, New York 10005
(212) 894-8940
(Name, Address and 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.
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Large accelerated filer ¨
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Accelerated filer ¨
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Non-accelerated filer x
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Smaller reporting company ¨
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Emerging growth company x
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. x
CALCULATION OF REGISTRATION FEE
Title of
Securities to
be Registered
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Amount to be
Registered (1)(2)
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Proposed Maximum
Offering
Price Per Share (3)
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Proposed Maximum
Aggregate
Offering Price (3)
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Amount of
Registration
Fee
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Common Shares
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9,065,290
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$8.13
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$73,700,807.70
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$8,040.76
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(1)
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Represents the number of common shares, without par (“Common Shares”), of AcuityAds Holdings Inc. (the “Registrant”)
available pursuant to the AcuityAds Holdings Inc. Omnibus Long-Term Incentive Plan (the “Plan”) being registered
hereon.
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(2)
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Pursuant to Rule 416 of the Securities Act of 1933, as amended (the “Securities Act”), this Registration
Statement also covers such additional Common Shares as may become available pursuant to any anti-dilution provisions of the Plan.
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(3)
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Estimated solely for calculating the amount of the registration fee, pursuant to paragraphs (c) and
(h) of Rule 457 of the General Rules and Regulations under the Securities Act, on the basis of the average of the high and low sale
prices of the Common Shares on The Nasdaq Capital Market on August 17, 2021, a date that is within five business days prior to
filing.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation
of Documents by Reference.
The following documents have been filed by the
Registrant with the Securities and Exchange Commission (the “Commission”) and are incorporated herein by reference:
All documents filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), subsequent to the date of this Registration Statement, and prior to the filing of a post-effective amendment that
indicates that all securities offered have been sold or that deregisters all securities then remaining unsold, will be deemed to be incorporated
by reference in this Registration Statement and to be part hereof from the date of filing of such documents. In addition, any Report on
Form 6-K of the Registrant hereafter furnished to the Commission pursuant to the Exchange Act shall be incorporated by reference into
this Registration Statement if and to the extent provided in such document. Any statement contained in any document incorporated or deemed
to be incorporated by reference herein will 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 that also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or superseded will not be deemed, except as modified or superseded,
to constitute a part of this Registration Statement.
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 the Canada Business Corporations Act (the
“CBCA”), the Registrant may indemnify its current or former directors or officers or another individual who acts or acted
at its request as a director or officer, or an individual acting in a similar capacity, of another entity, against all costs, charges
and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of
any civil, criminal, administrative, investigative or other proceeding in which the individual is involved because of his or her association
with the Registrant or another entity. The CBCA also provides that the Registrant may advance moneys to a director, officer or other individual
for costs, charges and expenses reasonably incurred in connection with such a proceeding; provided that such individual shall repay the
moneys if the individual does not fulfill the conditions described below.
However, indemnification is prohibited under the
CBCA unless the individual:
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·
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acted honestly and in good faith with a view to the Registrant’s best
interests, or, as the case may be, the best interests of the other entity for which the individual acted as director or officer or in
a similar capacity at the Registrant’s request; and
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·
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in the case of a criminal or administrative action or proceeding that is
enforced by a monetary penalty, the individual had reasonable grounds for believing that his or her conduct was lawful.
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The Registrant’s
by-laws require it to indemnify to the fullest extent permitted by the CBCA each of its current or former directors or officers and each
individual who acts or acted at its request as a director or officer, or an individual acting in a similar capacity, of another entity,
against all costs, charges and expenses, including, an amount paid to settle an action or satisfy a judgment, reasonably incurred by
the individual in respect of any civil, criminal, administrative, investigative or other proceeding in which the individual is involved
because of his or her association with the Registrant or another entity.
The Registrant’s by-laws authorize it to
purchase and maintain insurance for the benefit of each of its current or former directors or officers and each person who acts or acted
at its request as a director or officer, or an individual acting in a similar capacity, of another entity. To that effect, the Registrant
maintains insurance policies relating to certain liabilities that its directors and officers may incur in such capacity.
The Registrant has entered into indemnity agreements
with its directors and officers (each, an “Indemnified Party”) which provide, among other things, that the Registrant will
indemnify an Indemnified Party to the fullest extent permitted by law from and against all losses, liabilities, claims, damages, costs,
charges, statutory obligations, professional fees, taxes and expenses incurred by such Indemnified Party in respect of any civil, criminal,
administrative, investigative or other proceeding which (i) is made or asserted against or affects the Indemnified Party or in which the
Indemnified Party is required by law to participate or in which the Indemnified Party participates at the Registrant’s request or
where the Indemnified Party is made a witness or participant in any other respect in any such proceeding, and (ii) arises because the
Indemnified Party is the Registrant’s director or officer (or serves in a similar capacity) or the Registrant’s former director
or officer (or serves in a similar capacity).
In addition, the Registrant’s Board of Directors
has authorized the Registrant to indemnify and hold harmless its directors and officers in connection with any secondary sales effected
by such persons in a public offering undertaken by the Company.
Item 7. Exemption
from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Exhibit Number
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Description
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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 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 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective Registration Statement;
(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 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, 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 Toronto,
Province of Ontario, on this day of August, 2021.
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By:
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/s/ Tal Hayek
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Tal Hayek
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Chief Executive Officer
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Pursuant to the requirements of the Securities
Act, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
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Date: August 18 , 2021
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/s/ Tal Hayek
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Tal Hayek
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Chief Executive Officer and Director
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(Principal Executive Officer)
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Date: August 18, 2021
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*
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Jonathan Pollack
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Chief Financial Officer
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(Principal Financial Officer and Principal Accounting Officer)
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Date: August 18, 2021
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*
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Sheldon Pollack
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Director and Chairman of the Board
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Date: August 18, 2021
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*
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Igal Mayer
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Director
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Date: August 18, 2021
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*
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Roger Dent
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Director
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Date: August 18, 2021
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*
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Yishay Waxman
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Director
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Date: August 18, 2021
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*
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Corey Ferengul
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Director
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Date: August 18, 2021
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*
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Elisabeth Donohue
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Director
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* This Registration Statement has been signed on behalf of the above
officers and directors by Tal Hayek, as attorney-in-fact, pursuant to a power of attorney filed as Exhibit 24.1 to this Registration Statement.
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Dated: August 18, 2021
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By:
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/s/ Tal Hayek
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Tal Hayek
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Attorney-in-Fact
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