Securities Registration: Employee Benefit Plan (s-8)
September 03 2020 - 7:04AM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on September 3, 2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SG BLOCKS, INC.
(Exact name of registrant as specified
in its charter)
Delaware
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95-4463937
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(State or other jurisdiction
of incorporation or organization)
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(I.R.S. Employer
Identification Number)
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SG Blocks, Inc.
17 State Street, 19th Floor
New York, New
York 10004
(646) 240-4235
(Address, including ZIP code, and telephone
number, including
area code, of registrant’s principal
executive office)
SG BLOCKS, INC. STOCK INCENTIVE PLAN
(Full title of the Plan)
Paul M. Galvin
SG Blocks, Inc.
17 State Street, 19th Floor
New York, New
York 10004
(646) 240-4235
(Name, address and telephone number of
agent for service of process)
WITH COPIES TO:
Leslie Marlow, Esq.
Hank Gracin, Esq
Patrick J. Egan, Esq.
Gracin & Marlow, LLP
The Chrysler Building
405 Lexington Avenue, 26th Floor
New York, New York 10174
(212) 907-6457
(Name, address and telephone number)
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.:
Large accelerated filer ☐
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Accelerated filer ☐
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Non-accelerated filer ☒
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Smaller reporting company ☒
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Emerging growth company ☐
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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 13(a) of the Exchange Act. ☐
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(4)
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Common Stock, par value $0.01 per share, to be issued under the SG Blocks, Inc. Stock Incentive Plan
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1,000,000 shares
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$
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2.15
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$
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2,150,000
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$
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279.07
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(1)
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The securities to be registered include options and other rights to acquire the common stock of SG Blocks, Inc. (the “Registrant”).
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(2)
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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 any additional securities that may be offered or issued in connection with any stock split, stock dividend or similar transaction.
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(3)
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Calculated pursuant to Rule 457(c) and 457(h) of the Securities
Act solely for purposes of calculating the registration fee. The price for the shares under the plan is based upon the average
of the high and low sale prices of the Registrant’s common stock reported on the NASDAQ Capital Market on August 28, 2020.
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(4)
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Calculated under Section 6(b) of the Securities Act as .00012980 of the proposed maximum aggregate offering price.
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EXPLANATORY NOTE
SG Blocks, Inc. (the
“Registrant” or the “Company”) filed with the Securities and Exchange Commission (the “Commission”)
its Registration Statement on Form S-8 (Registration No. 333-223950) on March 27, 2018 (the “March 2018 Registration
Statement”) pursuant to and in accordance with the requirements of General Instruction E to Form S-8 for the purpose of registering
under the Securities Act of 1933, as amended (the “Securities Act”), 75,000 shares (1,500,000 shares on a pre-split
basis) of common stock, par value $0.01 per share (the “Common Stock”), to be offered and sold under the Registrant’s
Stock Incentive Plan, as it may be amended (hereinafter referred to as the “Plan”). Pursuant to General
Instruction E to Form S-8, the contents of the 2018 Registration Statement are incorporated into this Registration Statement by
reference.
The
Registrant also filed with the Commission its Registration Statement on Form S-8 (Registration No. 333-233352) on June 5,
2018 (the “June 2018 Registration Statement”) pursuant to and in accordance with the requirements of General Instruction
E to Form S-8 for the purpose of registering under the Securities Act an additional 50,000 shares (1,000,000 shares on a pre-split
basis) of Common Stock to be offered and sold under the Plan. These additional 50,000 shares of Common Stock were added
pursuant to the adoption of Amendment No. 1 to the Plan. Pursuant to General Instruction E to Form S-8, the contents of the
2019 Registration Statement are incorporated into this Registration Statement by reference.
The Registrant is filing
this Registration Statement on Form S-8 (the “Registration Statement”) to register an additional 1,000,000 shares of
Common Stock that were added to the Plan by a vote of the Registrant’s stockholders at the Registrant’s 2020 Annual
Meeting of Stockholders that was held on July 30, 2020 (the “2020 Annual Meeting”), whereby the stockholders approved
Amendment No. 2 to the Plan. Amendment No. 2 to the Plan increased the number of shares
of Common Stock with respect to which awards may be granted under the Plan to an aggregate of 1,125,000 shares of Common Stock.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual
Information*
*The information specified
in Item 1 and Item 2 of Part I of this Registration Statement on Form S-8 is omitted from this filing in accordance with the provisions
of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the introductory note to Part
I of Form S-8. The documents containing the information specified in Part I will be delivered to the participants in the Plan as
required by Rule 428. Such documents and the documents incorporated by reference in this Registration Statement pursuant to Item
3 of Part II of this Registration Statement, taken together, constitute 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 Securities and
Exchange Commission (the “Commission”) allows us to “incorporate by reference” certain information that
we will file with it which means that we can disclose important information to you by referring you to those documents instead
of having to repeat the information in this prospectus. The later information that we file with the SEC will automatically update
and supersede this information. We incorporate by reference the documents listed below and we also incorporate by reference into
this prospectus all documents (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed
on such form that are related to such items) that are filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act (Commission File No. 001-38037)) after the date of this prospectus but prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold.
These documents include periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current
Reports on Form 8-K, as well as proxy statements.
The following documents
are incorporated by reference into this document:
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Our Annual Report on Form 10-K for the year ended December 31, 2019 (File No. 001-38037) filed with the SEC on March 30, 2020 and Annual Report on Form 10-K/A (Amendment No. 1) for the year ended December 31, 2019 (File No. 001-38037) filed with the SEC on April 15, 2020;
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Our Quarterly Report on Form 10-Q for the quarter ended March
31, 2020 (File No. 001-38037) filed with the SEC on May 14, 2020;
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Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2020 (File No. 001-38037) filed with the SEC on August 13, 2020;
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Our Current Reports
on Form 8-K (File No. 001-38037) filed with the SEC January
2, 2020, January
16, 2020, January
23, 2020, February
5, 2020, February
6, 2020, February
24, 2020, April
3, 2020, April
15, April
17, April 28,
2020, May 5,
2020, May 11,
2020, May 15,
2020, May 22,
2020, June 3,
2020, June 11,
2020, June 18,
2020, June 22,
2020, June 29
2020 and July 30,
2020; and
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The description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form 8-A filed under the Exchange Act, as filed on March 20, 2017 (File No. 001-38037), including any amendment or report filed for the purpose of updating such description.
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We will provide to
each person, including any beneficial owner, to whom a prospectus is delivered, a copy of any or all of the reports or documents
that we incorporate by reference in this prospectus contained in the registration statement (except exhibits to the documents that
are not specifically incorporated by reference) at no cost to you, by writing or calling us at the following address and telephone
number:
SG Blocks, Inc.
17 State Street, 19th Floor
New York, New York 10004
(646) 240-4235
Information about us
is available at the Registrant’s website at www.sgblocks.com. Except for the specific incorporated reports
and documents listed above, no information available on or through the Registrant’s website shall be deemed to be incorporated
in this prospectus or the registration statement of which it forms a part. Any statement contained in this registration statement
or in a document incorporated or deemed to be incorporated by reference in this registration statement shall be deemed to be modified
or superseded for purposes of this registration statement to the extent that a statement contained in this registration statement
or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this registration statement
modifies or supersedes that 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.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Subsection (a) of Section
145 of the General Corporation Law of the State of Delaware (the “DGCL”) empowers a corporation to indemnify any person
who was or is a party or who is threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than 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 such action, suit or proceeding if the person acted in good faith and in a manner the
person 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 person’s conduct was unlawful.
Subsection (b) of Section
145 empowers a corporation to 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 acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and
reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, except that
no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
Section 145 further
provides that to the extent a director or officer of a corporation has been successful on the merits or otherwise in the defense
of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by
such person in connection therewith; that indemnification provided for by Section 145 shall not be deemed exclusive of any other
rights to which the indemnified party may be entitled; and the indemnification provided for by Section 145 shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of such person’s heirs, executors and administrators. Section 145 also empowers the corporation to purchase
and maintain insurance on behalf of any person who 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 any liability asserted against such person and incurred by such person in any such capacity,
or arising out of his status as such, whether or not the corporation would have the power to indemnify such person against such
liabilities under Section 145.
Section 102(b)(7) of
the DGCL provides that a corporation’s certificate of incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director,
provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director’s
duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit.
The Registrant’s
certificate of incorporation and the Registrant’s bylaws provide that we will indemnify the Registrant’s directors
and officers to the fullest extent permitted by the DGCL, which prohibits the Registrant’s certificate of incorporation from
limiting the liability of the Registrant’s directors for the following:
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any breach of the director’s duty of loyalty to us or the Registrant’s stockholders;
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acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
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unlawful payment of dividends or unlawful stock repurchases or redemptions; or
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any transaction from which the director derived an improper benefit.
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The Registrant’s
amended and restated certificate of incorporation, as amended, provides for indemnification of the Registrant’s directors
and executive officers to the maximum extent permitted by the DGCL, and the Registrant’s amended and restated bylaws provide
for indemnification of the Registrant’s directors and executive officers to the maximum extent permitted by the DGCL.
We have entered into
indemnification agreements with each of the Registrant’s current directors. These agreements will require us to indemnify
these individuals to the fullest extent permitted under Delaware law against liabilities that may arise by reason of their service
to us and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified. We also
intend to enter into indemnification agreements with the Registrant’s future directors and executive officers.
Item 7. Exemption from Registration
Claimed
Not applicable.
Item 8. Exhibits
Exhibit No.
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Description of Document
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3.1
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Amended
and Restated Certificate of Incorporation of SG Blocks, Inc. dated June 30, 2016 (incorporated herein by reference to Exhibit
3.1 to the Current Report on Form 8-K as filed by SG Blocks, Inc. with the Securities and Exchange Commission on July 7,
2016).
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3.2
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Certificate
of Amendment to Amended and Restated Certificate of Incorporation of SG Blocks, Inc. dated February 24, 2017 (incorporated
herein by reference to Exhibit 3.1 to the Current Report on Form 8-K as filed by SG Blocks, Inc. with the Securities and
Exchange Commission on February 28, 2017).
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3.3
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Certificate
of Amendment to Amended and Restated Certificate of Incorporation of SG Blocks, Inc. dated June 5, 2019 (incorporated herein
by reference to Exhibit 3.1 to the Current Report on Form 8-K as filed by SG Blocks, Inc. with the Securities and Exchange
Commission on June 5, 2019).
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3.4
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Certificate of Amendment to the Amended and Restated Certificate of Incorporation, as amended, of SG Blocks, Inc. dated February 4, 2020 (incorporated herein by reference to Exhibit 4.1 to the Current Report on Form 8-K as filed by SG Blocks, Inc. with the Securities and Exchange Commission on February 5, 2020 (File No. 001-38037)).
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3.5
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Amended and Restated By-laws of SG Blocks, Inc. (incorporated herein by reference to Exhibit 3.4 to the Annual Report on Form 10-K as filed by SG Blocks, Inc. with the Securities and Exchange Commission on February 21, 2017).
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4.1
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SG Blocks, Inc. Stock Incentive Plan (incorporated herein by reference to the Information Statement on Schedule 14C as filed by SG Blocks, Inc. with the Securities and Exchange Commission on February 8, 2017).
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4.2
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Amendment No. 1 to SG Blocks, Inc. Stock Incentive Plan (incorporated herein by reference to Exhibit 10.1 to the Current Report on Form 8-K as filed by SG Blocks, Inc. with the Securities and Exchange Commission on June 5, 2018).
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4.3
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Amendment No. 2 to the SG Blocks, Inc. Stock Incentive Plan (incorporated herein by reference to Appendix A to the Definitive Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission on June 25, 2020).
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4.4
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Form of SG Blocks, Inc. Incentive Stock Option Agreement (incorporated herein by reference to Exhibit 10.1 to the Current Report on Form 8-K as filed by SG Blocks, Inc. with the Securities and Exchange Commission on November 1, 2016).
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4.5
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Form of SG Blocks, Inc. Non-Qualified Stock Option Agreement (incorporated herein by reference to Exhibit 10.2 to the Current Report on Form 8-K as filed by SG Blocks, Inc. with the Securities and Exchange Commission on November 1, 2016).
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4.6
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Form of Restricted Stock Units Agreement (incorporated herein by reference to Exhibit 10.2 to the Quarterly Report on Form 10-Q as filed by SG Blocks, Inc. with the Securities and Exchange Commission on August 14, 2019).
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5.1*
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Opinion of Gracin & Marlow, LLP regarding legality of shares
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23.1*
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Consent of Whitley Penn LLP, Independent Registered Public Accounting Firm
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23.2*
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Consent of Gracin & Marlow, LLP (included in Exhibit 5.1)
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24.1*
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Power of Attorney (included as part of the signature page to this Registration Statement and incorporated herein by reference)
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Item 9. Undertakings
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 of 1933, as amended;
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 thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this
Registration Statement;
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 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 periodic reports filed
by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in this Registration Statement.
2. That, for the purpose of determining
any liability under the Securities Act of 1933, 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 that remain unsold at the termination of the offering.
4. That, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant
to section 15(d) of the Securities Exchange Act of 1934) 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.
5. Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant, 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 New York, State of New York, on the 3rd day of September, 2020.
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SG BLOCKS, INC.
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By:
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/s/ Paul M. Galvin
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Name:
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Paul M. Galvin
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Title:
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Chairman of the Board and
Chief Executive Officer
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(Principal Executive Officer)
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POWER OF ATTORNEY AND SIGNATURES
Each of the undersigned,
whose signature appears below, hereby constitutes and appoints Paul M. Galvin as his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign
any or all amendments to this Registration Statement, whether pre-effective or post-effective, and to file the same with all exhibits
thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent, or his substitute, full power and authority to do and perform each and every act and thing necessary or appropriate
to be done with respect to this Registration Statement or any amendments hereto in the premises, as fully to all intents and purposes
as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute
may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements
of the Securities Act of 1933, as amended, this registration statement on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated.
Signature
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Title
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Date
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/s/ Paul M. Galvin
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Chairman of the Board and Chief Executive Officer
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September 3, 2020
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Paul M. Galvin
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(Principal Executive Officer)
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/s/ Gerald Sheeran
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Acting Chief Financial Officer
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September 3, 2020
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Gerald Sheeran
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(Principal Financial Officer and
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Principal Accounting Officer)
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/s/ Yaniv Blumenfeld
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Director
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September
3, 2020
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Yaniv Blumenfeld
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/s/ Maggie Coleman
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Director
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September
3, 2020
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Maggie Coleman
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/s/ Christopher Melton
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Director
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September
3, 2020
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Christopher Melton
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