As filed with the Securities and Exchange Commission on January 27,
2021
Registration No. 333-_________
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UNITED STATES
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SECURITIES AND EXCHANGE COMMISSION
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Washington, D.C. 20549
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FORM S-8
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
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cbdMD, Inc.
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(Exact name of registrant as specified in its charter)
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North Carolina
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47-3414576
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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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8845 Red Oak Boulevard, Charlotte, NC
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28217
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(Address of Principal Executive Offices)
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(Zip Code)
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cbdMD, Inc. 2015 Equity Compensation Plan
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(Full title of plan)
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Mr. T. Ronan Kennedy
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8845 Red Oak Boulevard
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Charlotte, NC 28217
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(Name and address of agent for service)
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Telephone (704) 445-3060
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(Telephone number, including area code, of agent for
service)
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With a copy to:
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Brian A. Pearlman, Esq.
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Pearlman Law Group LLP
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200 S. Andrews Avenue
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Suite 901
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Fort Lauderdale, FL 33301
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Telephone (954) 880-9484
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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.
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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 13(a) of the Exchange 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 (2)
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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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222,011
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$3.66
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$811,450.21
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$104.76
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(1)
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Pursuant
to Rule 416(c) under the Securities Act of 1933, as amended, this
registration statement also covers an indeterminate number of
additional shares of common stock that may be offered or issued in
the event of a stock dividend, reverse stock split, split-up,
recapitalization, forfeiture of stock under those plans, or other
similar event.
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(2)
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Estimated
solely for the purpose of calculating the registration fee in
accordance with Rules 457(c) and (h) of the Securities Act of 1933,
as amended. The price per share and aggregate offering price are
calculated on the basis of the average of the high and low sale
prices of our common stock on the NYSE American on January 26,
2021, in accordance with Rule 457(c) under the Securities Act of
1933, as amended.
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EXPLANATORY NOTE
This
registration statement on Form S-8 of cbdMD, Inc., a North Carolina
corporation (the “Company”), relates to 222,011 shares
of common stock, par value $0.001 per share, issuable under the
Company’s 2015 Equity Compensation Plan (the “2015
Plan”), which common stock is in addition to (i) the
1,316,605 shares of common stock registered by it on a registration
statement on Form S-8 filed with the Securities and Exchange
Commission on October 9, 2018 (File No. 333-227746) and (ii) the
902,989 shares of common stock registered by it on a registration
statement on Form S-8 filed with the Securities and Exchange
Commission on August 15, 2019 (File No. 333-233291) (collectively,
the “Prior Registration Statement”).
The
2015 Plan as originally adopted contains an “evergreen
formula” pursuant to which the number of shares of common
stock available for issuance under the 2015 Plan would
automatically increase on the first trading day of January each
calendar year during the term of the 2015 Plan, beginning with
calendar year 2016, by an amount equal to 1% of the total number of
shares of the Company’s common stock outstanding on the last
trading day in December of the immediately preceding calendar year,
up to a maximum annual increase of 100,000 shares of common stock
(the “Evergreen Increase”). Subsequent thereto, on
August 7, 2019 the Company’s board of directors approved an
amendment to the 2015 Plan changing the date the automatic
evergreen increase is determined to the first trading day of
October each calendar year during the term of the 2015 Plan to
coincide with the Company’s fiscal year.The shares of common
stock covered by this Registration Statement reflect shares of the
Company’s common stock added to the 2015 Plan pursuant to its
terms for the Evergreen Increases through October 1,
2020.
This
registration statement relates to the same class as those to which
the Prior Registration Statement relate and is filed pursuant to
Instruction E of the General Instructions to Form S-8 regarding
registration of additional securities. Pursuant to Instruction E of
Form S-8, the contents of the Prior Registration Statement, to the
extent relating to the registration of shares of common stock under
the 2015 Plan and except as otherwise set forth in this
registration statement, are incorporated by reference
herein.
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item
3.
Incorporation of Documents by
Reference.
The
following documents, filed by the Company with the Securities and
Exchange Commission (the “Commission”) pursuant to the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), are incorporated herein by reference and deemed to be
a part hereof, except that information
furnished under Item 2.02 or Item 7.01 of the Current Reports on
Form 8-K or any other filing where we indicate that such
information is being furnished and not “filed” under
the Exchange Act, is not deemed to be filed and not incorporated by
reference herein:
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the Annual Report on Form 10-K for the fiscal year ended September
30, 2020 as filed on December 22, 2020; and
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the description of our common stock contained in the registration
statement on Form 8-A as filed with the Commission on November 15,
2017 and any further amendment or report filed hereafter for the
purpose of updating such description.
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All
other documents subsequently filed by us pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the
filing of such documents.
Any
statement contained in a document incorporated or deemed
incorporated herein by reference shall be deemed to be modified or
superseded for the purpose 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
herein by reference modifies or supersedes such statement. Any such
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.
None.
Item
6.
Indemnification of
Directors and Officers.
Sections
55-8-50 through 55-8-58 of the North Carolina General Statutes
permit a corporation to indemnify its directors, officers,
employees or agents under either or both a statutory or
non-statutory scheme of indemnification. Under the statutory
scheme, a corporation may, with certain exceptions, indemnify a
director, officer, employee or agent of the corporation who was,
is, or is threatened to be made, a party to any threatened, pending
or completed legal action, suit or proceeding, whether civil,
criminal, administrative, or investigative, because of the fact
that such person was a director, officer, agent or employee of the
corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another
corporation or enterprise. This indemnity may include the
obligation to pay any judgment, settlement, penalty, fine
(including an excise tax assessed with respect to an employee
benefit plan) and reasonable expenses incurred in connection with a
proceeding (including counsel fees), but no such indemnification
may be granted unless such director, officer, agent or employee (i)
conducted himself in good faith, (ii) reasonably believed (a) that
any action taken in his official capacity with the corporation was
in the best interest of the corporation or (b) that in all other
cases his conduct at least was not opposed to the
corporation’s best interest, and (iii) in the case of any
criminal proceeding, had no reasonable cause to believe his conduct
was unlawful. Whether a director has met the requisite standard of
conduct for the type of indemnification set forth above is
determined by the board of directors, a committee of directors,
special legal counsel or the shareholders in accordance with
Section 55-8-55. A corporation may not indemnify a director under
the statutory scheme in connection with a proceeding by or in the
right of the corporation in which the director was adjudged liable
to the corporation or in connection with a proceeding in which a
director was adjudged liable on the basis of having received an
improper personal benefit.
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In
addition to, and separate and apart from the indemnification
described above under the statutory scheme, Section 55-8-57 of
the North Carolina General Statutes permits a corporation to
indemnify or agree to indemnify any of its directors, officers,
employees or agents against liability and expenses (including
attorney’s fees) in any proceeding (including proceedings
brought by or on behalf of the corporation) arising out of their
status as such or their activities in such capacities, except for
any liabilities or expenses incurred on account of activities that
were, at the time taken, known or believed by the person to be
clearly in conflict with the best interests of the corporation. Our
bylaws provide for indemnification to the fullest extent permitted
by law for persons who serve as a director, officer, agent or
employee of the Company or at the request of the Company serve as a
director, officer, agent or employee for any other corporation,
partnership, joint venture, trust or other enterprise, or as a
trustee or administrator under an employee benefit plan.
Accordingly, we may indemnify our directors, officers, agents or
employees in accordance with either the statutory or non-statutory
standards.
Sections
55-8-52 and 55-8-56 of the North Carolina General Statutes require
a corporation, unless its articles of incorporation provide
otherwise, to indemnify a director or officer who has been wholly
successful, on the merits or otherwise, in the defense of any
proceeding to which such director or officer was a party. Unless
prohibited by the articles of incorporation, a director or officer
also may make application and obtain court-ordered indemnification
if the court determines that such director or officer is fairly and
reasonably entitled to such indemnification as provided in Sections
55-8-54 and 55-8-56.
Finally,
Section 55-8-57 of the North Carolina General Statutes provides
that a corporation may purchase and maintain insurance on behalf of
an individual who is or was a director, officer, employee or agent
of the corporation against certain liabilities incurred by such
persons, whether or not the corporation is otherwise authorized by
the North Carolina Business Corporation Act to indemnify such
party. We have purchased a standard directors’ and
officers’ liability policy which will, subject to certain
limitations, indemnify us and our officers and directors for
damages they become legally obligated to pay as a result of any
negligent act, error, or omission committed by directors or
officers while acting in their capacity as such.
As
permitted by North Carolina law, Article 6 of our Articles of
Incorporation limits the personal liability of directors for
monetary damages for breaches of duty as a director arising out of
any legal action for breach of duty as a director.
Item
7.
Exemption from
Registration Claimed.
Not
applicable.
Item
8.
Exhibits.
The
exhibits filed herewith or incorporated herein by reference are set
forth in the attached Exhibit Index.
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) of
Securities Act 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
periodic 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.
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(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 herein,
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 that is incorporated by reference
in this registration statement shall be deemed to be a new
registration statement relating to the securities offered herein,
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 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.
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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 Charlotte,
State of North Carolina on January 27, 2021.
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cbdMD, Inc.
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By:
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/s/
T. Ronan Kennedy
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T. Ronan Kennedy,
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Chief Financial Officer
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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.
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Name
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Positions
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Date
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/s/ Martin A.
Sumichrast
Martin
A. Sumichrast
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Chairman of the Board of Directors, co-Chief Executive Officer
(co-principal executive officer)
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January
27, 2021
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/s/ Raymond S.
Coffman
Raymond
S. Coffman
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co-Chief Executive Officer (co-principal executive officer) and
Director
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January
27, 2021
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/s/ T. Ronan
Kennedy
T.
Ronan Kennedy
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Chief Financial Officer (principal financial and accounting
officer)
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January
27, 2021
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/s/ Bakari
Sellers
Bakari
Sellers
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Director
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January
27 2021
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/s/ Peter J.
Ghiloni
Peter
J. Ghiloni
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Director
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January
27, 2021
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/s/ Scott G.
Stephen
Scott
G. Stephen
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Director
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January
27 2021
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/s/ William F.
Raines, III
William
F. Raines, III
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Director
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January
27, 2021
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6
EXHIBIT INDEX
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Incorporated by Reference
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Filed or
Furnished
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No.
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Exhibit Description
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Form
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Date Filed
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Number
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Herewith
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2015
Equity Compensation Plan
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1-A
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9/18/17
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3.8
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Opinion
of Pearlman Law Group LLP
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Filed
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Opinion
of Gavigan Law, PLLC
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Filed
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Consent
of Cherry Bekaert LLP
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Filed
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Consent
of Pearlman Law Group LLP (included in Exhibit 5.1)
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Filed
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Consent
of Gavigan Law, PLLC (included in Exhibit 5.2)
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Filed
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