As filed with the Securities and Exchange Commission on June 10, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE BEACHBODY COMPANY, INC.
(Exact name of registrant as specified in its charter)
Delaware | 83-3222090 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
400 Continental Blvd, Suite 400
El Segundo, California 90245
(Address of Principal Executive Offices) (Zip Code)
The Beachbody Company, Inc. 2021 Incentive Award Plan
The Beachbody Company, Inc. 2021 Employee Stock Purchase Plan
(Full title of the plan)
Carl Daikeler
Chief Executive Officer
The Beachbody Company, Inc.
400 Continental Blvd, Suite 400
El Segundo, CA 90245
(Name and address for agent for service)
(310) 883-9000
(Telephone number, including area code, of agent for service)
Copies to:
Steven B. Stokdyk, Esq.
Brent T. Epstein, Esq.
Latham & Watkins LLP
10250 Constellation Blvd, Suite 1100
Los Angeles, California 90067
(213) 485-1234
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 (this Registration Statement) is being filed with the Securities and Exchange Commission by The Beachbody Company, Inc., a Delaware corporation (the Registrant), for the purpose of registering (i) 335,295 shares of Class A common stock, par value $0.0001 per share (Class A Common Stock) that were automatically added on January 1, 2024 to the number of shares authorized for issuance under the Companys 2021 Incentive Award Plan (the 2021 Plan) pursuant to an evergreen provision, which allows for an annual increase in the number of shares of the Companys common stock authorized for issuance thereunder, (ii) 67,059 shares of Class A Common Stock that were automatically added on January 1, 2024 to the number of shares authorized for issuance under the Companys 2021 Employee Stock Purchase Plan (the 2021 ESPP and, together with the 2021 Plan, the Plans) pursuant to an evergreen provision, which allows for an annual increase in the number of shares of the Companys common stock authorized for issuance thereunder, (iii) 350,000 shares of Class A Common Stock that became authorized for issuance under the 2021 Plan pursuant to an amendment to the 2021 Plan, which was approved by the Registrants stockholders at the Registrants annual meeting of stockholders held on June 4, 2024, and (iv) 415,491 shares of Class A Common Stock that would have been issued upon the vesting of restricted stock unit awards granted under the 2021 Plan, but that were cancelled or forfeited prior to vesting, and as such again became available for issuance under the 2021 Plan pursuant to its terms.
The additional shares of Class A Common Stock registered hereby pursuant to the 2021 Plan, as amended, and the 2021 ESPP, as applicable, are of the same class as other securities relating to the Plans for which Registration Statements on Form S-8 (Nos. 333-259100 and 333-272686) are effective (the Prior Registration Statements).
Pursuant to General Instruction E of Form S-8, the contents of the Prior Registration Statements are incorporated by reference herein to the extent not modified or superseded hereby or by any subsequently filed document, which is incorporated by reference herein or therein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 8. | EXHIBITS |
The following are the exhibits required by Item 601 of Regulation S-K:
Exhibit |
Description |
Incorporated by Reference |
Filed
or |
|||||||||||||||||||
Form | File No. | Exhibit | Filing Date | |||||||||||||||||||
4.1 | Second Amended and Restated Certificate of Incorporation of The Beachbody Company, Inc. | 10-K | 001-39735 | 3.1 | Mar. 11, 2024 | |||||||||||||||||
4.2 | Certificate of Amendment to Second Amended and Restated Certificate of Incorporation of The Beachbody Company, Inc. | 8-K | 001-39735 | 3.1 | Nov. 27, 2023 | |||||||||||||||||
4.3 | Amended and Restated Bylaws of The Beachbody Company, Inc. | 8-K | 001-39735 | 3.2 | Jul. 1, 2021 | |||||||||||||||||
4.4 | Specimen Class A Common Stock Certificate of The Beachbody Company, Inc. | 8-K | 001-39735 | 4.1 | Jul. 1, 2021 | |||||||||||||||||
5.1 | Opinion of Latham & Watkins LLP | X | ||||||||||||||||||||
23.1 | Consent of Deloitte & Touche LLP | X | ||||||||||||||||||||
23.2 | Consent of Ernst & Young LLP | X | ||||||||||||||||||||
23.3 | Consent of Latham & Watkins LLP (included in Exhibit 5.1) | X | ||||||||||||||||||||
24.1 | Power of Attorney. Reference is made to the signature page to the Registration Statement | X | ||||||||||||||||||||
99.1 | The Beachbody Company, Inc. 2021 Incentive Award Plan. | 8-K | 001-39735 | 10.2 | Jul. 9, 2021 |
99.2 | Amendment to The Beachbody Company, Inc. 2021 Incentive Award Plan. | 8-K | 001-39735 | 10.1 | Jun. 7, 2024 | |||||||||||||||||
99.3 | The Beachbody Company, Inc. 2021 Employee Stock Purchase Plan | 8-K | 001-39735 | 10.3 | Jul. 9, 2021 | |||||||||||||||||
107 | Filing Fee Table | X |
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-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of El Segundo, State of California, on June 10, 2024.
The Beachbody Company, Inc. | ||
By: | /s/ Carl Daikeler | |
Name: Carl Daikeler | ||
Title: Chief Executive officer and Director |
Each person whose signature appears below constitutes and appoints each of Carl Daikeler and Marc Suidan, acting alone or together with another attorney-in-fact, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in his or her name, place and stead, in any and all capacities, to sign any or all further amendments (including post-effective amendments) to this registration statement (and any additional registration statement related hereto permitted by Rule 462(b) promulgated under the Securities Act of 1933, as amended (and all further amendments, including post-effective amendments, thereto)), 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 and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature |
Title |
Date | ||
/s/ Carl Daikeler |
Chief Executive Officer and Director | June 10, 2024 | ||
Carl Daikeler | (Principal Executive Officer) | |||
/s/ Marc Suidan |
Chief Financial Officer | June 10, 2024 | ||
Marc Suidan | (Principal Financial Officer and Principal Accounting Officer) | |||
/s/ Mark Goldston |
Executive Chairman | June 10, 2024 | ||
Mark Goldston | ||||
/s/ Mary Conlin |
Director | June 10, 2024 | ||
Mary Conlin | ||||
/s/ Kristin Frank |
Director | June 10, 2024 | ||
Kristin Frank | ||||
/s/ Michael Heller |
Director | June 10, 2024 | ||
Michael Heller | ||||
/s/ Ann Lundy |
Director | June 10, 2024 | ||
Ann Lundy | ||||
/s/ Kevin Mayer |
Director | June 10, 2024 | ||
Kevin Mayer | ||||
/s/ John Salter |
Director | June 10, 2024 | ||
John Salter | ||||
/s/ Ben Van de Bunt |
Director | June 10, 2024 | ||
Ben Van de Bunt |
Exhibit 5.1
10250 Constellation Blvd., Suite 1100 | ||||
Los Angeles, California 90067 | ||||
Tel: +1.424.653.5500 Fax: +1.424.653.5501 | ||||
www.lw.com | ||||
FIRM / AFFILIATE OFFICES | ||||
Austin | Milan | |||
Beijing | Munich | |||
Boston | New York | |||
Brussels | Orange County | |||
Century City | Paris | |||
June 10, 2024 | Chicago | Riyadh | ||
Dubai | San Diego | |||
Düsseldorf | San Francisco | |||
Frankfurt | Seoul | |||
Hamburg | Silicon Valley | |||
Hong Kong | Singapore | |||
Houston | Tel Aviv | |||
London | Tokyo | |||
The Beachbody Company, Inc. | Los Angeles | Washington, D.C. | ||
400 Continental Blvd., Suite 400 | Madrid | |||
El Segundo, California 90245 |
Re: The Beachbody Company, Inc. Registration Statement on Form S-8
To the addressees set forth above:
We have acted as special counsel to The Beachbody Company, Inc., a Delaware corporation (the Company), in connection with the registration by the Company or an aggregate 1,167,845 shares of the Companys Class A common stock, $0.0001 par value per share (the Shares), of which (i) up to 1,100,786 Shares are issuable under The Beachbody Company, Inc. 2021 Incentive Award Plan (the 2021 Plan) and (ii) up to 67,059 Shares are issuance under The Beachbody Company, Inc. Employee Stock Purchase Plan (together with the 2021 Plan, the Plans). The Shares are included in a registration statement on Form S-8 under the Securities Act of 1933, as amended (the Act), filed with the Securities and Exchange Commission (the Commission) on June 10, 2024 (the Registration Statement). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or related Prospectus, other than as expressly stated herein with respect to the issue of the Shares.
As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We are opining herein as to General Corporation Law of the State of Delaware, and we express no opinion with respect to any other laws.
Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the recipients thereof, and have been issued by the Company for legal consideration in excess of par value in the circumstances contemplated by the Plans, assuming in each case that the individual grants or awards under the
June 10, 2024
Page 2
Plans are duly authorized by all necessary corporate action and duly granted or awarded and exercised in accordance with the requirements of law and the Plans (and the agreements and awards duly adopted thereunder and in accordance therewith), the issue and sale of the Shares will have been duly authorized by all necessary corporate action of the Company, and the Shares will be validly issued, fully paid and nonassessable. In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the General Corporation Law of the State of Delaware.
This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. We consent to your filing this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby 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 Commission thereunder.
Sincerely, |
/s/ Latham & Watkins LLP |
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 11, 2024 relating to the financial statements of The Beachbody Company, Inc., appearing in the Annual Report on Form 10-K of The Beachbody Company, Inc. for the year ended December 31, 2023.
/s/ Deloitte & Touche LLP
Los Angeles, California
June 10, 2024
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the registration of the common stock of The Beachbody Company, Inc. of our report dated March 16, 2023 (except for the effects of the reverse stock split discussed in Note 1 and Note 15, as to which the date is January 24, 2024), with respect to the consolidated financial statements of The Beachbody Company, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2023, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP |
Los Angeles, California
June 10, 2024
Exhibit 107
CALCULATION OF FILING FEE TABLE
FORM S-8
(Form Type)
THE BEACHBODY COMPANY, INC.
(Exact Name of Registrant as Specified in its Charter)
Table I: Newly Registered Securities
Plan |
Security Type |
Security Title |
Fee Calculation |
Amount Registered(1) |
Proposed Maximum Offering Price Per Unit |
Maximum Aggregate Offering Price |
Fee Rate |
Amount of Registration Fee | ||||||||
The Beachbody Company, Inc. 2021 Incentive Award Plan | Equity | Class A Common Stock, par value $0.0001 per share |
Rule 457(c) and 457(h) |
1,167,845(2) | $8.52(4) | $9,950,039.40 | $147.60 per million dollars |
$1,468.63 | ||||||||
The Beachbody Company, Inc. Employee Stock Purchase Plan | Equity | Class A Common Stock, par value $0.001 per share | Rule 457(c) and 457(h) | 67,059(3) | $8.52(4) | $571,342.68 | $147.60 per million dollars |
$84.33 | ||||||||
Total Offering Amounts | $10,521,382.08 | $1,552.96 | ||||||||||||||
Total Fee Offsets(5) | $ | |||||||||||||||
Net Fee Due | $1,552.96 |
(1) | In accordance with Rule 416(a) under the Securities Act of 1933, as amended (Securities Act), this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued under the Registrants 2021 Incentive Award Plan (the 2021 Plan) to prevent dilution resulting from stock splits, stock dividends or similar transactions. In addition, pursuant to Rule 416(c) under the Securities Act, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Plans. |
(2) | Consists of (i) 335,295 shares of Class A common stock, par value $0.0001 per share (Class A Common Stock) that were automatically added on January 1, 2024 to the number of shares authorized for issuance under the Companys 2021 Incentive Award Plan (the 2021 Plan) pursuant to an evergreen provision, which allows for an annual increase in the number of shares of the Companys common stock authorized for issuance thereunder, (ii) 350,000 shares of Class A Common Stock that became authorized for issuance under the 2021 Plan pursuant to an amendment to the 2021 Plan, which was approved by the Registrants stockholders at the Registrants annual meeting of stockholders held on June 4, 2024 and (iii) 415,491 shares of Class A Common Stock that would have been issued upon the vesting of restricted stock unit awards granted under the 2021 Plan, but that were cancelled or forfeited prior to vesting, and as such again became available for issuance under the 2021 Plan pursuant to its terms. |
(3) | Consists of 67,059 shares of Class A Common Stock that were automatically added on January 1, 2024 to the number of shares authorized for issuance under the Companys 2021 Employee Stock Purchase Plan pursuant to an evergreen provision, which allows for an annual increase in the number of shares of the Companys common stock authorized for issuance thereunder. |
(4) | Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933, as amended, and based upon the average of the high and low prices per share of Class A Common Stock as reported on The New York Stock Exchange on June 6, 2024. |
(5) | The Registrant does not have any fee offsets. |
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