As
filed with the Securities and Exchange Commission on April 29,
2010
Registration
No. 333-165258
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
AMENDMENT
NUMBER 3 TO THE
FORM
S-3
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
ONSTREAM MEDIA
CORPORATION
(Exact
name of registrant as specified in its charter)
Florida
(State or
other jurisdiction of incorporation or organization)
65-0420146
(I.R.S.
Employer Identification No.)
1291 SW
29 Avenue
Pompano
Beach, Florida 33069
(954)
917-6655
(Address,
including zip code, and telephone number, including area code,
of
registrant's principal executive offices)
Randy S.
Selman, CEO
Onstream
Media Corporation
1291 SW
29th Avenue
Pompano
Beach, Florida 33069
(954)
917-6655
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
Copies
to:
Joel D.
Mayersohn, Esq.
Roetzel
& Andress, LPA
350 East
Las Olas Boulevard
Las Olas
Centre II, Suite 1150
Fort
Lauderdale, Florida 33301
(954) 462-4150
telephone
(954) 462-4260
telecopier
From time to time after this
registration statement becomes effective
(Approximate
date of commencement of proposed sale to public)
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box.
|_|
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. |_|
If this
Form is a registration statement pursuant to General Instruction 1.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. [ ]
If this
Form is a post effective amendment to a registration statement filed pursuant to
General Instruction 1.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. [ ]
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 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 [
] (Do
not check if a smaller reporting
company) Smaller
reporting company [
X
]
Calculation
of Registration Fee
|
|
|
|
|
|
|
|
Proposed
|
|
|
|
Proposed
|
|
|
|
|
|
|
Title of
each
|
|
|
|
|
|
|
maximum
|
|
|
|
maximum
|
|
|
|
Amount
of
|
|
|
class
of securities
|
|
|
Amount
to be
|
|
|
|
offering
price
|
|
|
|
aggregate
|
|
|
|
registration
|
|
|
to
be registered (1)
|
|
|
registered
|
|
|
|
per
unit(2)
|
|
|
|
offering
price(2)
|
|
|
|
fee(3)
|
|
|
Common
stock
|
|
|
(4
|
)
|
|
|
(4
|
)
|
|
|
(4
|
)
|
|
|
(4
|
)
|
|
Preferred
stock
|
|
|
(4
|
)
|
|
|
(4
|
)
|
|
|
(4
|
)
|
|
|
(4
|
)
|
|
Warrants
|
|
|
(4
|
)
|
|
|
(4
|
)
|
|
|
(4
|
)
|
|
|
(4
|
)
|
|
Units
|
|
|
(4
|
)
|
|
|
(4
|
)
|
|
|
(4
|
)
|
|
|
(4
|
)
|
|
Totals
|
|
|
|
|
|
|
|
|
|
$
|
6,600,000
|
|
|
$
|
357
|
|
|
(1)
|
We
are registering such indeterminate number of shares of common stock and
such indeterminate number of units consisting of combinations of the
foregoing plus an indeterminate number of options and warrants to purchase
common stock as we may offer and sell from time to time, which together
will have an aggregate initial offering price not to exceed $6,600,000.
The securities registered hereunder also include such indeterminate number
of shares of common stock as may be issued upon exercise of such options
or warrants or pursuant to the antidilution provisions of any of such
securities. In addition, pursuant to Rule 416 under the Securities
Act of 1933, as amended (the "Securities Act"), the shares of common stock
being registered hereunder include such indeterminate number of shares as
may be issuable as a result of stock splits, stock dividends or similar
transactions.
|
|
(2)
|
The
proposed maximum offering price per unit and aggregate offering prices per
class of security will be determined from time to time by the registrant
in connection with the issuance by the registrant of the securities
registered hereunder. At no time will the maximum aggregate offering
price of all securities issues in any given 12-month period exceed the
amount allowed for in General Instruction I.B.6 of
Form S-3.
|
|
(3)
|
Estimated
solely for purposes of calculating the registration fee pursuant to Rule
457 under the Securities Act.
|
|
(4)
|
Not
required to be included in accordance with General Instruction II.D. of
Form S-3.
|
The
registrant hereby amends this registration statement on such date or dates as
may be necessary to delay its effective date until the registrant shall file a
further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act, or until the registration statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a), may
determine.
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14.
Other Expenses of
Issuance and Distribution
|
Registration
Fees - Securities and Exchange Commission
|
|
$
|
357
|
|
|
Listing
of Additional Shares - The NASDAQ Stock Market*
|
|
|
40,300
|
|
|
Cost
of Printing
|
|
|
1,000
|
|
|
Legal
Fees and Expenses
|
|
|
5,000
|
|
|
Accounting
Fees and Expenses
|
|
|
10,000
|
|
|
Blue
Sky Fees and Expenses
|
|
|
5,000
|
|
|
Miscellaneous
|
|
|
1,343
|
|
|
Total
|
|
$
|
63,000
|
|
*Estimated
maximum incremental fees – NASDAQ listing fees of $0.01 per share are assessed
at the time the common shares are issued, up to the quarterly and/or annual
maximum fee, which is currently $5,000 and $65,000, respectively. Through the
date of this S-3 filing, we have incurred NASDAQ listing fees for the fiscal
year in progress of approximately $24,700.
Item
15.
Indemnification of
Directors and Officers
The
Florida Business Corporation Act permits the indemnification of directors,
employees, officers and agents of a Florida corporation. Our articles of
incorporation and bylaws provide that we shall indemnify to the fullest extent
permitted by the Florida Business Corporation Act any person whom we may
indemnify under the act.
The
provisions of Florida law that authorize indemnification do not eliminate the
duty of care of a director, and in appropriate circumstances equitable remedies
including injunctive or other forms of non-monetary relief will remain
available. In addition, each director will continue to be subject to liability
for:
- violations
of criminal laws, unless the director has reasonable cause to believe that his
or her conduct was lawful or had no reasonable cause to believe his conduct was
unlawful,
- deriving
an improper personal benefit from a transaction,
- voting
for or assenting to an unlawful distribution, and
- willful
misconduct or conscious disregard for our best interests in a proceeding by or
in our right to procure a judgment in its favor or in a proceeding by or in the
right of a shareholder.
The
statute does not affect a director's responsibilities under any other law,
including federal securities laws.
The
effect of Florida law, our articles of incorporation and our bylaws is to
require us to indemnify our officers and directors for any claim arising against
those persons in their official capacities if the person acted in good faith and
in a manner that 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 his or her conduct was
unlawful.
To the
extent indemnification for liabilities arising under the Securities Act may be
permitted to our directors, officers or control persons, we have been informed
that in the opinion of the SEC, this indemnification is against public policy as
expressed in the Securities Act and is unenforceable.
Item
16.
Exhibits and
Consolidated Financial Statement Schedules
Exhibit
No. Description
|
5.1
|
Opinion
of Roetzel & Andress, LPA
|
|
23.1
|
Consent
of Goldstein Lewin & Co.
(1)
|
|
23.2
|
Consent
of Roetzel & Andress, LPA (included in Exhibit
5.1)
|
|
24.1
|
Power
of Attorney (2)
|
|
(2)
|
Incorporated
by reference to the power of attorney included on the signature page of
Form S-3 filed on March 25, 2010.
|
Item
17.
Undertakings
Onstream
Media will:
1. File,
during any period in which it offers or sells securities, a post-effective
amendment to this registration statement to:
i. Include
any prospectus required by Section 10(a)(3) of the Securities Act;
ii.
Reflect in the prospectus any facts or events which, individually or together,
represent a fundamental change in the information in the registration statement;
and 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 prospects
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in the 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
iii. Include
any additional or changed material information on the plan of
distribution.
2. For
determining liability under the Securities Act, treat each post-effective
amendment as a new registration statement of the securities offered, and the
offering of the securities at that time to be the initial bona fide
offering.
3. File
a post-effective amendment to remove from registration any of the securities
that remain unsold at the end of the offering.
4. That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities, the
undersigned registrant undertakes that any primary offering of securities of the
registrant pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the registrant will be a seller to the purchaser and
will be considered to offer or sell such securities to such
purchaser:
i. Any
preliminary prospectus or prospectus of the registrant relating to the offering
required to be filed pursuant to Rule 424;
ii. Any
free writing prospectus relating to the offering prepared by or on behalf of the
registrant or used or referred to by the registrant;
iii. The
portion of any other free writing prospectus relating to the offering containing
material information about the registrant or its securities provided by or on
behalf of the registrant; and
iv. Any
other communication that is an offer in the offering made by the registrant to
the purchaser.
5. The
registrant herby undertakes that, for the purpose of determining any liability
under the Securities Act of 1933, each filing of the registrant’s annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and,
were applicable, each filing of an employee benefit plan, annual report pursuant
to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in this 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
bonfide offering thereof.
6. Insofar
as indemnification for liabilities arising under the Securities Act of 1933 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 Securities and Exchange Commission such
indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of
such issue.
7. That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser, each prospectus filed pursuant to Rule 424(b) as part of a
registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in reliance on
Rule 430A, shall be deemed to be part of and included in the registration
statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such
document immediately prior to such date of first use.
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-3 and has duly caused this amendment number three to the
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Pompano Beach and the State of Florida, on the
29th day of April, 2010.
|
|
ONSTREAM
MEDIA CORPORATION
|
|
|
|
|
|
|
|
|
By:
|
/s/
Randy S. Selman
|
|
|
|
|
|
|
|
|
|
Randy
S. Selman
Chairman
of the Board,
Chief
Executive Officer and President,
Principal
Executive Officer
|
|
Pursuant
to the requirements of the Securities Act of 1933, this amendment number three
to the registration statement has been signed by the following persons in the
capacities and on the dates indicated.
|
Signature
|
|
Title
|
Date
|
|
|
|
|
|
|
/s/ Randy S. Selman
|
|
Director,
President,
|
April
29,
2010
|
|
Randy
S. Selman
|
|
and Chief Executive
Officer
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Robert E.
Tomlinson*
|
|
Chief Financial Officer
and
|
April
29,
2010
|
|
Robert
E. Tomlinson
|
|
Principal Accounting
Officer
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Clifford
Friedland*
|
|
Director and Senior Vice
President
|
April
29,
2010
|
|
Clifford
Friedland
|
|
Business
Development
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Alan Saperstein*
|
|
Director and Chief Operating
Officer
|
April
29,
2010
|
|
Alan
Saperstein
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Leon Nowalsky*
|
|
Director
|
April
29,
2010
|
|
Leon
Nowalsky
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Robert J.
Wussler*
|
|
Director
|
April
29,
2010
|
|
Robert
J. Wussler
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Charles C.
Johnston*
|
|
Director
|
April
29,
2010
|
|
Charles
C. Johnston
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Carl Silva*
|
|
Director
|
April
29,
2010
|
|
Carl
Silva
|
|
|
|
|
|
* By
Randy Selman pursuant to a Power of Attorney which was previously filed with the
initial registration statement on March 5, 2010.
Onstream Media (MM) (NASDAQ:ONSMD)
Historical Stock Chart
From Apr 2024 to May 2024
Onstream Media (MM) (NASDAQ:ONSMD)
Historical Stock Chart
From May 2023 to May 2024
