As filed with the Securities Exchange Commission on November 1,
2019
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
FREEDOM HOLDING CORP.
(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 incorporation or
organization)
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(I.R.S.
Employer Identification No.)
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“Esentia Tower” BC, Floor 7
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77/7 Al Farabi Ave
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Almaty, Kazakhstan
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050040
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(Address
of principal executive offices)
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(Zip
code)
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Freedom Holding Corp. 2019 Equity Incentive Plan
(Full
title of the plan)
Evgeniy Ler
Chief Financial Officer
“Esentia Tower” BC
77/7 Al Farabi Ave
Almaty, Kazakhstan
(888) 996-3742
(Name,
address and telephone number, including area code of agent for
service)
Copies to:
Ronald L. Poulton
Poulton & Yordan
324 South 400 West, Suite 250
Salt Lake City, Utah 84101
(801) 355-1341
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer or 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):
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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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☐
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Smaller
reporting company
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☒
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Emerging
growth company
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☐
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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. [
]
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(3)
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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 $0.001 per share
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3,740,000(2)
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$
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13.25
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$
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49,555,000
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$
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6,432.24
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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.
2019 Equity Incentive Plan by reason of any stock dividend, stock
split, recapitalization or any similar transaction effected without
receipt of consideration.
(2)
The number of
shares being registered is the maximum aggregate number of shares
currently issuable under the Freedom Holding Corp. 2019 Equity
Incentive Plan.
(3)
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 using the average
of the high and low prices per share of the Common Stock as
reported on the Nasdaq Capital Market on October 29,
2019.
EXPLANATORY NOTE
This
Registration Statement on Form S-8 (the “Registration
Statement”) is being filed to register 3,740,000 shares of
Freedom Holding Corp. common stock, par value $0.001 per share
(“Common Stock”) issuable
pursuant to the Freedom Holding Corp. 2019 Equity Incentive Plan
(the “2019 Plan”). The shareholders of Freedom Holding
Corp. approved the 2019 Plan on September 20, 2018. As of November
1, 2019, no awards have been granted pursuant to the 2019
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 2019 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., 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 year ended March 31, 2019, filed with
the Commission on June 14, 2019;
(ii)
Our Quarterly
Report on Form 10-Q for the quarterly period ended June 30, 2019,
filed with the Commission on August 9, 2019;
(iii)
Our Current Reports
on Form 8-K filed with the Commission on September 10, 2019, and
October 2, 2019;
(iv)
The description of
our capital stock contained in the our Registration Statement on
Form 8-A filed with the Commission on October 10, 2019, 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, as amended, 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
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.
The
validity of the issuance of the common stock being registered has
been passed upon by the law firm of Poulton & Yordan. As of
November 1, 2019, members of Poulton & Yordan owned 218,260
shares of restricted Common Stock of Freedom Holding Corp., none of
which are being registered in connection with this Registration
Statement. It is anticipated that members of Poulton & Yordan
will receive 30,000 shares that will be registered in connection
with this Registration Statement.
Item 6. Indemnification of Directors and Officers.
Our
Restated Articles of Incorporation, as filed with the Nevada
Secretary of State on February 7, 2019, 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
under the 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.
Subject only to any limitations prescribed by the laws of the State
of Nevada now or hereafter in force, the foregoing shall not limit
our authority to indemnify the directors, officers and other
employees and agents consistent with law and shall not be deemed to
be exclusive of any rights to which those indemnified may be
entitled as a matter of law or under any resolution, By-Law
provision, or agreement.
Our
By-Laws provide that we will 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 (other than an action by
or in the right of the Corporation) by reason of the fact that he
is or was a director or officer, or is or was a director or officer
serving at our request as a director or 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, and in connection
with the defense of such action or suit, actually and reasonably
incurred by such person in connection with such action, suit or
proceeding to the fullest extent permitted by Nevada
Law.
Section
78.7502 of Chapter 78 of the Nevada Revised Statutes (the
“NRS”) provides for discretionary and mandatory
indemnification of 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) acted in good faith and in a manner 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; or (b) is not liable pursuant to Section 78.138 of the
NRS. Under Section 78.138, a director or officer is not
individually liable to the corporation unless such person breached
their fiduciary duty and such breach involved intentional
misconduct, fraud or a knowing violation of law. If the action or
suit is by or in the right 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.
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 By-Law, 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 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% change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in
the effective registration statement; and
(iii) To
include any material information with respect to the Plan 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 (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 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 provisions referenced in Item 6 of
this Registration Statement, 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 hereunder, 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 31, 2019.
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FREEDOM 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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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 31, 2019
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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 31, 2019
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Evgeniy Ler
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(principal financial and accounting officer)
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/s/ Boris Cherdabayev
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Director
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October 31, 2019
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Boris Cherdabayev
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/s/
Jason Kerr
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Director
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November
1, 2019
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Jason Kerr
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/s/ Leonard Stillman
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Director
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October
31, 2019
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Leonard Stillman
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/s/ Askar Tashtitov
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Director
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October
31, 2019
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Askar Tashtitov
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EXHIBIT INDEX
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Incorporated
by Reference
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Filed
or Furnished
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Exhibit
Number
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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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Herewith
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Restated
Articles of Incorporation
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8-K
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3.01
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02/06/19
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By-Laws
of Freedom Holding Corp. (as amended through February 4,
2019)
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8-K
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3.02
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02/06/19
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Freedom
Holding Corp. 2019 Equity Incentive Plan
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8-K
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10.01
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09/21/18
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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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Power
of Attorney (included on the signature page hereto)
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X
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