Form S-8 SmileDirectClub, Inc.
File No. 333-_____
As filed with the Securities and Exchange Commission on June 1, 2022
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
________________________________
SMILEDIRECTCLUB, INC.
(Exact name of registrant as specified in its charter)
(Exact name of registrant as specified in its charter)
| Delaware | 83-4505317 | |||||||
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) | |||||||
414 Union Street Nashville, Tennessee 37219 | ||||||||
| (Address of Principal Executive Offices, including Zip Code) | ||||||||
SmileDirectClub, Inc. 2019 Omnibus Incentive Plan
SmileDirectClub, Inc. 2019 Stock Purchase Plan
(Full title of the plans)
Susan Greenspon Rammelt Chief Legal Officer, EVP Business Affairs and Secretary SmileDirectClub, Inc. 414 Union Street Nashville, TN 37219 (Name and address of agent for service) 800-848-7566 (Telephone number, including area code, of agent for service) | with a copy to: Jason M. Hille Foley & Lardner LLP 777 East Wisconsin Avenue Milwaukee, Wisconsin 53202 (414) 271-2400 | ||||
_______________________
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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.
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4870-2326-1213.4
STATEMENT PURSUANT TO GENERAL INSTRUCTION E TO FORM S-8
This Registration Statement on Form S-8 (this “Registration Statement”) registers additional shares of Class A Common Stock, par value $0.0001 per share, of SmileDirectClub, Inc. (the “Registrant”) available for grant and issuance by Registrant under its 2019 Omnibus Incentive Plan (the “Omnibus Plan”) and its 2019 Stock Purchase Plan (the “Purchase Plan”).
The number of shares reserved for issuance under the Omnibus Plan is subject to an automatic increase on the first day of each fiscal year, commencing on January 1, 2020 and ending on (and including) January 1, 2029, in an amount equal to 5% of the total number of shares of Class A Common Stock outstanding on the last day of the calendar month prior to the date of such automatic increase (the “Omnibus Plan Evergreen Provision”). Notwithstanding the foregoing, the Registrant’s Board of Directors may act prior to the first day of a given fiscal year to provide that there will be no increase in the number of shares of Class A Common Stock available for issuance under the Omnibus Plan for such fiscal year or that the increase in the number of shares available for issuance under the Omnibus Plan for such year will be a lesser number of shares than would otherwise occur pursuant to the preceding sentence.
The number of shares reserved for issuance under the Purchase Plan is subject to an automatic increase on the first day of each fiscal year, commencing on January 1, 2020, and ending on (and including) January 1, 2029, in an amount equal to 1% of the total number of shares of the Registrant’s Class A Common Stock outstanding on the last day of the calendar month prior to the date of such automatic increase (the “Purchase Plan Evergreen Provision”). Notwithstanding the foregoing, the Registrant’s Board of Directors may act prior to the first day of a given fiscal year to provide that there will be no increase in the number of shares of Class A Common Stock available for issuance under the Purchase Plan for such fiscal year or that the increase in the number of shares available for issuance under the Purchase Plan for such year will be a lesser number of shares of shares than would otherwise occur pursuant to the preceding sentence.
This Registration Statement registers an additional 16,900,689 shares of Class A Common Stock that became available for grant and issuance under the Omnibus Plan pursuant to the Omnibus Plan Evergreen Provision and an additional 3,380,138 shares of Class A Common Stock that had become available for grant and issuance under the Purchase Plan pursuant to the Purchase Plan Evergreen Provision through January 1, 2022. The contents of the Registration Statement on Form S-8 relating to the Omnibus Plan and the Purchase Plan previously filed by the Registrant with the Securities and Exchange Commission (the “Commission”) on September 16, 2019 (File No. 333-233773) are incorporated by reference into this Registration Statement pursuant to General Instruction E of Form S-8.
1
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8Exhibits
Exhibit Index
| Exhibit No. | Exhibit Description | ||||
2
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 Nashville, State of Tennessee, on this 31st day of May, 2022.
| SMILEDIRECTCLUB, INC. | ||||||||
| By: | /s/ David B. Katzman | |||||||
| David B. Katzman | ||||||||
| Chief Executive Officer | ||||||||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints David B. Katzman and Susan Greenspon Rammelt, and each of them, as his or her true and lawful attorneys-in-fact and agents, each with the full power of substitution, for him or her and in their name, place or stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange 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 in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his, her or their 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 by the following persons in the capacities and on the dates indicated.
S-1
| SIGNATURE | TITLE | DATE | ||||||||||||
| /s/ David B. Katzman | Chief Executive Officer and Director (Principal Executive Officer) | May 31, 2022 | ||||||||||||
| David B. Katzman | ||||||||||||||
| /s/ Troy Crawford | May 31, 2022 | |||||||||||||
| Interim Chief Financial Officer, Chief | ||||||||||||||
| Troy Crawford | Accounting Officer, and Treasurer (Principal Financial and Accounting Officer) | |||||||||||||
| /s/ Steven Katzman | May 31, 2022 | |||||||||||||
| Chief Operating Officer and Director | ||||||||||||||
| Steven Katzman | ||||||||||||||
| /s/ Jordan Katzman | Director | May 31, 2022 | ||||||||||||
| Jordan Katzman | ||||||||||||||
| /s/ Alexander Fenkell | Director | May 31, 2022 | ||||||||||||
| Alexander Fenkell | ||||||||||||||
| /s/ Susan Greenspon Rammelt | Chief Legal Officer, EVP Business Affairs, Secretary, and Director | May 31, 2022 | ||||||||||||
| Susan Greenspon Rammelt | ||||||||||||||
| /s/ Edward W. Ward, III | Director | May 31, 2022 | ||||||||||||
| Edward W. Ward, III | ||||||||||||||
| /s/ Carol J. Hamilton | Director | May 31, 2022 | ||||||||||||
| Carol J. Hamilton | ||||||||||||||
| /s/ Richard F. Wallman | Director | May 31, 2022 | ||||||||||||
| Richard F. Wallman | ||||||||||||||
S-2
 | ATTORNEYS AT LAW 777 EAST WISCONSIN AVENUE MILWAUKEE, WI 53202-5306 414.271.2400 TEL 414.297.4900 FAX WWW.FOLEY.COM | ||||
May 31, 2022
SmileDirectClub, Inc. 414 Union Street Nashville, Tennessee | |||||
Re: SmileDirectClub, Inc. Registration on Form S-8
Ladies and Gentlemen:
We have served as counsel to SmileDirectClub, Inc., a Delaware corporation (the “Company”), in connection with the preparation of a Registration Statement on Form S-8 (together with all exhibits thereto, the “Registration Statement”) to be filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement relates to an offering by the Company of up to a total of (1) 16,900,689 additional shares of the Company’s Class A common stock, par value $0.0001 per share (the “Shares”), that may be issued pursuant to the Company’s 2019 Omnibus Incentive Plan (the “Omnibus Plan”) and (2) 3,380,138 additional Shares, that may be issued pursuant to the Company’s 2019 Stock Purchase Plan (the “Purchase Plan” and together with the Omnibus Plan, the “Plans”).
In connection with our representation, we have examined (1) the Amended and Restated Certificate of Incorporation of the Company, (2) the Amended and Restated By-Laws of the Company, (3) the Registration Statement, (4) the Plans and (5) such other corporate records, certificates, documents and other instruments as in our opinion are necessary or appropriate in connection with expressing the opinions set forth below.
Based upon and pursuant to the foregoing, we are of the opinion that the Shares, when issued by the Company pursuant to the terms and conditions of the Plans and as contemplated by the Registration Statement, will be validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are “experts” within the meaning of Section 11 of the Securities Act or within the category of persons whose consent is required by Section 7 of the Securities Act.
Sincerely,
/s/ Foley & Lardner LLP
AUSTIN BOSTON CHICAGO DALLAS DENVER | DETROIT HOUSTON JACKSONVILLE LOS ANGELES MADISON | MEXICO CITY MIAMI MILWAUKEE NEW YORK ORLANDO | SACRAMENTO SALT LAKE CITY SAN DIEGO SAN FRANCISCO SILICON VALLEY | TALLAHASSEE TAMPA WASHINGTON, D.C. BRUSSELS TOKYO | ||||||||||
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the 2019 Omnibus Incentive Plan and 2019 Stock Purchase Plan of SmileDirectClub, Inc. of our reports dated March 1, 2022, with respect to the consolidated financial statements of SmileDirectClub, Inc. and the effectiveness of internal control over financial reporting of SmileDirectClub, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2021, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Nashville, Tennessee
May 31, 2022
Calculation of Filing Fee Tables
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________________
SMILEDIRECTCLUB, INC.
(Exact name of Registrant as specified in its charter)
Table 1: Newly Registered Securities
| Security Type | Security Class Title | Fee Calcul-ation Rule | Amount Registered(1) | Proposed Maximum Offering Price Per Unit(2) | Maximum Aggregate Offering Price(2) | Fee Rate | Amount of Registration Fee | ||||||||||||||||
| Equity | Class A Common Stock, par value $0.0001 per share, reserved for issuance pursuant to the SmileDirectClub, Inc. 2019 Omnibus Incentive Plan | Other(2) | 16,900,689(1) | $1.34(2) | $22,646,923.26 (2) | 0.0000927 | $2,099.37 | ||||||||||||||||
| Equity | Class A Common Stock, par value $0.0001 per share, reserved for issuance pursuant to the SmileDirectClub, Inc. 2019 Stock Purchase Plan | Other(2) | 3,380,138(1) | $1.34(2) | $4,529,384.92 (2) | 0.0000927 | $419.87 | ||||||||||||||||
| Total Offering Amounts | - | $27,176,308.18 | - | $2,519.24 | |||||||||||||||||||
| Total Fees Previously Paid | - | - | - | - | |||||||||||||||||||
| Total Fee Offsets | - | - | - | - | |||||||||||||||||||
| Net Fee Due | - | - | - | $2,519.24 | |||||||||||||||||||
(1) Represents shares of Class A Common Stock of SmileDirectClub, Inc. (the “Registrant”). Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), the amount to be registered includes any additional shares of the Registrant’s Class A Common Stock that become issuable under the SmileDirectClub, Inc. 2019 Omnibus Incentive Plan or the SmileDirectClub, Inc. 2019 Stock Purchase Plan by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected that results in an increase to the number of outstanding shares of the Registrant’s Class A Common Stock, as applicable.
(2) Estimated in accordance with Rule 457(c) and Rule 457(h) solely for the purpose of calculating the registration fee based on a per share price of $1.34, the average of the high and low price of the Class A Common Stock on May 24, 2022, as reported on the NASDAQ Global Select Market.
4893-3368-0418.1