Mediaco Holding Inc S-3/A, filed Jul 22, 2024
Mediaco Holding Inc. (MDIA)
S-3/A
2024-07-22
View Original
Added on
October 19, 2026
As filed with the Securities and Exchange Commission on July 19, 2024.
Registration No. 333‑280779
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1 to
FORM S‑3REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MEDIACO HOLDING INC.
(Exact Name of Registrant as Specified in Its Charter)
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Indiana
(State or Other Jurisdiction of Incorporation or Organization) |
84-2427771
(I.R.S. Employer Identification Number) |
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48 West 25th Street, Third Floor
New York, New York 10010
(212) 229-9797
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
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Jacqueline Hernández
Interim Chief Executive Officer
MediaCo Holding Inc.
48 West 25th Street, Third Floor
New York, New York 10010
(212) 229-9797
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service) |
Copies to:
Justin W. Chairman, Esquire
Morgan, Lewis & Bockius LLP
2222 Market Street
Philadelphia, PA 19103
(215) 963-5000
Morgan, Lewis & Bockius LLP
2222 Market Street
Philadelphia, PA 19103
(215) 963-5000
Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective.
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. ☒
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 I.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 I.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, 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 ☐
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Smaller reporting company ☒
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 7(a)(2)(B) of the Securities Act. ☐
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 of 1933, as amended, or until this registration statement shall become effective on such date as the
Securities and Exchange Commission, acting pursuant to such Section 8(a), may determine.
Explanatory Note
MediaCo Holding Inc. (the “Registrant”) is filing this Amendment No. 1 (the “Amendment”) to its Registration Statement on Form S-3 (File No. 333-280779) as an exhibit-only
filing to file Exhibit 5.1 and restate the list of exhibits set forth in Item 16 of Part II of the Registration Statement. According, this Amendment consists only of the facing page, this explanatory note, Part II of the registration Statement,
including the signature page and the exhibit index, and the filed exhibit. The prospectus is unchanged and has been omitted.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the fees and expenses, other than discounts, commissions and concessions payable to broker-dealers and agents, in connection with the offering and distribution of the
securities being offered hereunder. All amounts other than the filing fee for the registration statement are estimates. All of these fees and expenses will be borne by the Registrant.
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SEC registration fee
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$20,944.87
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Legal fees and expenses
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$22,500.00
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Accounting fees and expenses
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$20,000.00
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Transfer agent and registrar fees and expenses
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$--
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Printing, engraving and miscellaneous expenses
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$1,000.00
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Total
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$64,444.87
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Item 15. Indemnification of Directors and Officers
Chapter 37 of the Indiana Business Corporation Law (the “IBCL”) requires a corporation, unless its articles of incorporation provide otherwise, to indemnify a director or an officer of the
corporation who is wholly successful, on the merits or otherwise, in the defense of any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal, against
reasonable expenses, including counsel fees, incurred in connection with the proceeding. The Registrant’s Articles of Incorporation expressly require such indemnification.
The IBCL also permits a corporation to indemnify a director, officer, employee or agent who is made a party to a proceeding because the person was a director, officer, employee or agent of the
corporation against liability incurred in the proceeding if (i) the individual’s conduct was in good faith and (ii) the individual reasonably believed (A) in the case of conduct in the individual’s official capacity with the corporation that the
conduct was in the corporation’s best interests and (B) in all other cases that the individual’s conduct was at least not opposed to the corporation’s best interests and (iii) in the case of a criminal proceeding, the individual either (A) had
reasonable cause to believe the individual’s conduct was lawful or (B) had no reasonable cause to believe the individual’s conduct was unlawful. The IBCL also permits a corporation to pay for or reimburse reasonable expenses incurred before the final
disposition of the proceeding and permits a court of competent jurisdiction to order a corporation to indemnify a director or officer if the court determines that the person is fairly and reasonably entitled to indemnification in view of all the
relevant circumstances, whether or not the person met the standards for indemnification otherwise provided in the IBCL.
The Registrant’s Articles of Incorporation provide that any director or officer of the Registrant or any person who is serving at the request of the Registrant as a director, officer, employee or
agent of another entity shall be indemnified and held harmless by the Registrant to the fullest extent authorized by the IBCL. The Articles of Incorporation will also provide that the Registrant shall, upon a determination that such indemnification
is permissible, pay the expenses incurred in defending proceedings in advance of their final disposition and authorize the Registrant to maintain insurance to protect itself and any director, officer, employee or agent of the Registrant or any person
who is or was serving at the request of the Registrant as a director, officer, partner, trustee, employee or agent of another entity against expense, liability or loss, whether or not the Registrant would have the power to indemnify such person
against such expense, liability or loss under the Articles of Incorporation.
The Registrant has entered into written indemnification agreements with each of its officers and directors that provide for indemnification by the Registrant to the maximum extent permitted under
Indiana law.
Item 16. Exhibits
The following documents are filed as exhibits to this registration statement, including those exhibits incorporated herein by reference to one of our prior filings under the Securities Act or the
Exchange Act as indicated in parentheses:
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Exhibit
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Document
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___________________________
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Filed herewith.
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| % |
Previously filed.
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Item 17. 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;
(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 and 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; and
(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 this registration statement;
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) above 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, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the 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
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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.
(4) That, for the purpose of determining liability under the Securities Act of 1933
to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act shall be deemed
to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or date of the first sale of securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which
the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of this registration statement or made in a document incorporated or deemed incorporated by reference into this registration
statement or prospectus that is a part of this registration statement will, as to a purchaser with a time of contract sale prior to such effective date, supersede or modify any statement that was made in this registration statement or prospectus that
was a part of this registration statement or made in any such document immediately prior to such effective date.
(5) 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, in a primary offering of securities of the undersigned 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 undersigned 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 undersigned 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 undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(6) 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 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.
(7) 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 Securities and Exchange 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 against the registrant 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 of 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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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 No. 1 to the 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 July 19, 2024.
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MEDIACO HOLDING INC.
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| By: |
/s/ Jacqueline Hernández
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Jacqueline Hernández
Interim Chief Executive Officer |
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Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 1 to the registration statement has been signed by the following persons in the capacities and on the dates
indicated.
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Signature
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Title
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Date
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/s/ Jacqueline Hernández
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Interim Chief Executive Officer and Director (principal executive officer)
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July 19, 2024
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Jacqueline Hernández
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/s/ Ann C. Beemish
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Executive Vice President, Chief Financial Officer and Treasurer (principal financial and accounting officer)
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July 19, 2024
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Ann C. Beemish
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*
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Chair of Board of Directors
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July 19, 2024
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Deborah A. McDermott
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Director
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July 19, 2024
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Colbert Cannon
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*
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Director
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July 19, 2024
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J. Scott Enright
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*
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Director
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July 19, 2024
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Andrew Glaze
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*
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Director
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July 19, 2024
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Robert L. Greene
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*
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Director
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July 19, 2024
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Mary Beth McAdaragh
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*
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Director
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July 19, 2024
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Brett Pertuz
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*
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Director
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July 19, 2024
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Jeffrey H. Smulyan
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*
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Director
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July 19, 2024
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Amit Thakrar
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*
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Director
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July 19, 2024
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Patrick M. Walsh
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/s/ Ann C. Beemish
Ann C. Beemish
Attorney-in-factII-5
Exhibit 5.1
[Letterhead of Bose McKinney & Evans LLP]
July 19, 2024
MediaCo Holding Inc.
48 West 25th Street, Third Floor
New York, New York 10010
Ladies and Gentlemen:
We have acted as local Indiana counsel to MediaCo Holding Inc., an Indiana corporation (the “Company”), in connection with the Registration Statement on Form S-3, File No. 333-280779 (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Act”), relating to the proposed offer and sale by the selling shareholders named therein of up to the number of shares specified therein (the “Shares”) of the Company’s Class A Common Stock, par value $0.01 per share (the “Common Stock”). This opinion letter is being furnished at your request in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.
For purposes of issuing this opinion letter, we have made such legal and factual examinations and inquiries, including an examination of
originals or copies certified or otherwise identified to our satisfaction as being true copies of (i) the Registration Statement, (ii) the Amended and Restated Articles of Incorporation and Amended and Restated Bylaws of the Company, as amended to
date and incorporated by reference in the Registration Statement; and (iii) such agreements, instruments, resolutions of the board of directors of the Company or committees thereof, and other corporate records, and such other documents as we have
deemed necessary or appropriate for the purpose of issuing this opinion letter, and we have obtained from officers and other representatives and agents of the Company and from public officials, and have relied upon, such certificates,
representations and assurances, and public filings, as we have deemed necessary or appropriate.
Without limiting the generality of the foregoing, in our examination, we have, with your permission, assumed without independent
verification: (i) the statements of fact and all representations and warranties set forth in the documents we have reviewed are true and correct as to factual matters, in each case as of the date or dates of such documents and as of the date
hereof; (ii) each natural person executing any of the documents we have reviewed has sufficient legal capacity to do so; (iii) all documents submitted to us as originals are authentic, the signatures on all documents that we have reviewed are
genuine and all documents submitted to us as certified, conformed, photostatic, facsimile or electronic copies conform to the original document; (iv) all corporate records made available to us by
MediaCo Holding Inc.
July 19, 2024
Page Two
the Company, and all public records we have reviewed, are accurate and complete; (v) at the time any of the Shares are sold pursuant to the Registration
Statement, the Company will continue to be validly existing and in good standing under the laws of its jurisdiction of organization and (vi) at the time any of the Shares are sold pursuant to the Registration Statement, the total number of issued
and outstanding shares of Class A Common Stock (including such Shares being sold), together with the total number of shares of Class A Common Stock then reserved for issuance or obligated to be issued by the Company pursuant to any convertible
securities or any agreement or arrangement or otherwise, do not exceed the total number of shares of Class A Common Stock then authorized under the Company’s Amended and Restated Articles of Incorporation, as amended to such date.
We have also assumed that the Shares will not be sold (and the selling shareholders will not commit to sell the Shares) in such
quantities to “aliens” (as defined in Article XI of the Company’s Amended and Restated Articles of Incorporation, as amended) as would cause the Company to violate Article XI of the Company’s Amended and Restated Articles of Incorporation, as
amended, unless an appropriate ruling has been first received by the Company from the Federal Communications Commission or any successor governmental agency (the “FCC”) to the effect that such sales would be authorized under the Communications Act of 1934, as amended, and the rules, regulations, orders and policies of the FCC.
The opinion set forth herein is expressly limited to and based exclusively on the general corporate laws of the State of Indiana, and we
do not express any opinion with respect to the applicability or effect of the laws of any other jurisdiction. We express no opinion concerning, and we assume no responsibility as to laws or judicial decisions related to, or any orders, consents or
other authorizations or approvals as may be required by, any federal laws, rules or regulations, including, without limitation, any federal securities laws, rules or regulations, or any state securities or “blue sky” laws, rules or regulations.
Based upon the foregoing and in reliance thereon, and having regard to legal considerations and other information that we deem relevant,
we are of the opinion that if, when and to the extent any Shares are sold in the manner contemplated by the Registration Statement, such Shares will be validly issued, fully paid and nonassessable.
The opinion expressed herein is based upon the applicable laws of the State of Indiana and the facts in existence on the date hereof. In
delivering this opinion letter to you, we disclaim any obligation to update or supplement the opinion set forth herein or to apprise you of any changes in any laws or facts after the later of the date hereof. No opinion is offered or implied as to
any matter, and no inference may be drawn, beyond the strict scope of the specific issues expressly addressed by the opinion set forth herein.
MediaCo Holding Inc.
July 19, 2024
Page Three
We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement, and to the reference to our firm
therein under the heading “Legal Matters”. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission
promulgated thereunder. This opinion is intended solely for use in connection with the sale of the Shares pursuant to the Registration Statement by the
selling shareholders named therein and is not to be relied upon for any other purpose.
Sincerely,
/s/ BOSE McKINNEY & EVANS llp
/s/ BOSE McKINNEY & EVANS llp