Form S-8 F45 Training Holdings

As filed with the Securities and Exchange Commission on August 15, 2022

Registration No. 333-            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

F45 Training Holdings Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware		84-2529722
(State or Other Jurisdiction of Incorporation or Organization)		(I.R.S. Employer Identification No.)

3601 South Congress Avenue, Building E

Austin, Texas 78704

(Address of Principal Executive Offices, Zip Code)

F45 Training Holdings Inc. 2021 Equity Incentive Plan

(Full title of the plan)

Ben Coates

Interim Chief Executive Officer

F45 Training Holdings Inc.

3601 South Congress Avenue, Building E

Austin, Texas 78704

(Name and address of agent for service)

(737) 787-1955

(Telephone number, including area code, of agent for service)

Copies to:

 

Peter W. Wardle Daniela L. Stolman Gibson, Dunn & Crutcher, LLP 333 South Grand Avenue Los Angeles, CA 90071 (213) 229-7000

 

 

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		☐		Accelerated filer		☐
Non-accelerated filer		☑		Smaller reporting company		☑
Emerging growth company		☑

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.  ☐

 

 

 

EXPLANATORY NOTE

This Registration Statement on Form S-8 is filed by F45 Training Holdings Inc. (the “Company” or the “Registrant”) and relates to 4,527,728 shares of its common stock, par value $0.00005 per share (the “Common Stock”), available for issuance pursuant to future awards to eligible persons under the F45 Training Holdings Inc. 2021 Equity Incentive Plan (the “Plan”). The shares of Common Stock are in addition to the 7,738,648 shares of Common Stock registered on the Registrant’s Form S-8 filed on July 23, 2021 (File No. 333-258140) with respect to the Plan, of which (i) 5,000,000 of the shares were reserved for issuance pursuant to future awards to eligible persons under the Plan and (ii) 2,738,648 of the shares were reserved for issuance with respect to outstanding restricted stock units granted outside of the Plan (collectively, the “Prior Registration Statement”). This Registration Statement relates to securities of the same class as that to which the Prior Registration Statement relates and is submitted in accordance with General Instruction E to Form S-8 regarding registration of additional securities. Pursuant to Instruction E of Form S-8, the contents of the Prior Registration Statement are incorporated herein by reference and made part of this Registration Statement.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The information specified in Items 1 and 2 of Part I of Form S-8 is omitted from this Registration Statement 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 this Part I will be delivered to the participants in the Plan covered by this Registration Statement as required by Rule 428(b)(1) 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 prospectus or prospectus supplement pursuant to Rule 424 under the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 8.

Exhibits.

 

Exhibit No.		Exhibit Description
4.1		Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on July 19, 2021).
4.2		Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed on July 19, 2021).
5.1*		Opinion of Gibson, Dunn & Crutcher LLP.
23.1*		Consent of Independent Registered Public Accounting Firm.

 

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23.2*		Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5.1).
24.1*		Power of Attorney (included on signature page hereto).
99.1		F45 Training Holdings Inc. 2021 Equity Incentive Plan (incorporated by reference to Exhibit 10.18 to the Company’s Registration Statement on Form S-1/A filed on July 7, 2021).
107.1*		Filing Fee Table

 

*	Filed herewith.

 

Item 9.

Undertakings.

 

(a)	The undersigned Registrant hereby undertakes:

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;

(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% 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 the Registration Statement or any material change to such information in the Registration Statement;

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement;

(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and

 

3

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the 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.

 

4

SIGNATURES

Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Austin, State of Texas, on August 15, 2022.

 

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Ben Coates, Chris E. Payne and Patrick Grosso, and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments, to this Registration Statement, and any registration statement relating to the offering covered by this Registration Statement and filed pursuant to Rule 462 under the Securities Act, and to file the same, with exhibits thereto and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents or their substitute or substitutes may lawfully so or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act, the following persons have signed this Registration Statement in the capacities and on the date(s) indicated.

 

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Signature		Title		Date
/s/ Ben Coates Ben Coates		Interim Chief Executive Officer and Director (Principal Executive Officer)		August 15, 2022
/s/ Chris E. Payne Chris E. Payne		Chief Financial Officer and Director (Principal Accounting and Financial Officer)		August 15, 2022
/s/ Michael T. Raymond Michael T. Raymond		Director		August 15, 2022
/s/ Darren Richman Darren Richman		Director		August 15, 2022
/s/ Mark Wahlberg Mark Wahlberg		Director		August 15, 2022
/s/ Angelo Demasi Angelo Demasi		Director		August 15, 2022
/s/ Richard Grellman Richard Grellman		Director		August 15, 2022
/s/ Elizabeth Josefsberg Elizabeth Josefsberg		Director		August 15, 2022
/s/ Adam J. Gilchrist Adam J. Gilchrist		Director		August 15, 2022
/s/ Lee Wallace Lee Wallace		Director		August 15, 2022
/s/ Vanessa Douglas Vanessa Douglas		Director		August 15, 2022

		Gibson, Dunn & Crutcher LLP   2029 Century Park East Los Angeles, CA 90067-3026 Tel 310.552.8500 www.gibsondunn.com

EXHIBIT 5.1

August 15, 2022

 

F45 Training Holdings Inc. 3601 South Congress Avenue, Building E Austin, Texas 78704

 

Re:	Registration Statement on Form S-8

Ladies and Gentlemen:

We have examined the Registration Statement on Form S-8, (the “Registration Statement”) of F45 Training Holdings Inc., a Delaware corporation (the “Company”), to be filed with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), in connection with the offering by the Company of up to 4,527,728 shares of the Company’s Common Stock, par value $0.00005 per share (the “Shares”). The shares of Common Stock are reserved for issuance pursuant to future awards under the F45 Training Holdings Inc. 2021 Equity Incentive Plan (the “Plan”) and are in addition to the 7,738,648 shares of Common Stock registered on the Company’s Form S-8 filed on July 23, 2021 (File No. 333-258140) with respect to the Plan (the “Prior Registration Statement”).

We have examined the originals, or photostatic or certified copies, of such records of the Company and certificates of officers of the Company and of public officials and such other documents as we have deemed relevant and necessary as the basis for the opinions set forth below. In our examination, we have assumed the genuineness of all signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as copies. We have also assumed that there are no agreements or understandings between or among the Company and any participants in the Plan that would expand, modify or otherwise affect the terms of the Plan or the respective rights or obligations of the participants thereunder. Finally, we have assumed the accuracy of all other information provided to us by the Company during the course of our investigations, on which we have relied in issuing the opinion expressed below.

Based upon the foregoing examination and in reliance thereon, and subject to the qualifications, assumptions and limitations stated herein and in reliance on the statements of fact contained in the documents that we have examined, we are of the opinion that the Shares, when issued and sold in accordance with the terms set forth in the Plan and when the Registration Statement has become effective under the Securities Act, will be validly issued, fully paid and non-assessable.

Beijing • Brussels • Century City • Dallas • Denver • Dubai • Frankfurt • Hong Kong • Houston • London • Los Angeles • Munich

New York • Orange County • Palo Alto • Paris • San Francisco • São Paulo • Singapore • Washington, D.C.

We render no opinion herein as to matters involving the laws of any jurisdiction other than the Delaware General Corporation Law (the “DGCL”). We are not admitted to practice in the State of Delaware; however, we are generally familiar with the DGCL as currently in effect and have made such inquiries as we consider necessary to render the opinions above. This opinion is limited to the effect of the current state of the DGCL and the facts as they currently exist. We assume no obligation to revise or supplement this opinion in the event of future changes in such law or the interpretations thereof or such facts.

We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission.

 

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 22, 2022, relating to the consolidated financial statements of F45 Training Holdings Inc. and subsidiaries, appearing in the Annual Report on Form 10-K of F45 Training Holdings Inc. for the year ended December 31, 2021.

/s/ DELOITTE & TOUCHE LLP

Costa Mesa, California

August 15, 2022

Exhibit 107

Calculation of Filing Fee Tables

Form S-8

(Form Type)

F45 Training Holdings Inc.

(Exact Name of Registrant as Specified in its Charter)

Table 1: Newly Registered Securities

 

Security Type

Security Class Title(1)

Fee Calculation or Carry Forward Rule

Amount Registered(1)

Proposed Maximum Offering price Per Unit

Maximum Aggregate Offering Price

Fee Rate

Amount of Registration Fee

Fees to be Paid

Equity

Common stock, par value $0.01 per share, to be issued under the F45 Training Holdings Inc. 2021 Equity Incentive Plan (the “Plan”)

457(c) and 457(h)

4,527,728

$1.83(2)

$8,285,743(2)

0.0000927

$769

Fees Previously Paid

Total Offering Amounts

$8,285,743

$769

Total Fees Previously Paid

$0

Total Fee Offsets

$0

Net Fee Due

$769

 

(1)

Pursuant to Rule 416 of the Securities Act of 1933 (the “Securities Act”), this Registration Statement on Form S-8 (this “Registration Statement”), also includes additional shares of Common Stock, par value of $0.01 per share (“Common Stock”) of F45 Training Holdings Inc. in respect of the securities identified in the above table that may become issuable through the Plan as a result of any stock dividend, stock split, recapitalization or other similar transactions.

(2)	Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) under the Securities Act, based on the average of the high and low prices of a share of common stock on the New York Stock Exchange on August 9, 2022, which was $1.83.