As filed with the Securities and Exchange Commission on June 24, 2022.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PETIQ, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 35-2554312 | |
|
(State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) |
230 E. Riverside Dr.
Eagle, ID 83616
(Address of Principal Executive Offices)
PetIQ, Inc. Amended and Restated 2017 Omnibus Incentive Plan
(Full Title of the Plan)
McCord Christensen
Chief Executive Officer
PetIQ, Inc.
230 E. Riverside Dr.
Eagle, ID 83616
(Name and Address of Agent for Service)
(208) 939-8900
(Telephone Number, Including Area Code, of Agent for Service)
Copy to:
Michael J. Blankenship, Esq.
Winston & Strawn LLP
800 Capitol St., Suite 2400
Houston, TX 77002
(713) 651-2600
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 | x | 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
Pursuant to General Instruction E of Form S-8, this Registration Statement on Form S-8 (the “Registration Statement”) is being filed in order to register an additional 2,670,158 shares of Class A common stock, par value $0.001 per share (the “Common Stock”), of PetIQ, Inc., a Delaware corporation (the “Registrant”), that may be awarded under the PetIQ, Inc. Amended and Restated 2017 Omnibus Incentive Plan (the “Plan”), which are securities of the same class and relate to the same employee benefit plan as those shares registered on the Registrant’s registration statements on Form S-8 previously filed with the Securities and Exchange Commission (the “SEC”) on July 26, 2017 (Registration No. 333-219455) and on May 29, 2019 (Registration No. 333-231795), which are hereby incorporated by reference (collectively, the “Prior Registration Statements”). These shares of Common Stock consist of (i) 1,890,000 shares of Common Stock that have become reserved and available for issuance following stockholder approval of the amendment and restatement of the Plan, plus (ii) 780,158 shares of Common Stock that may be issued in accordance with the “recycling” provisions of the Plan, which provide that shares of Common Stock subject to certain forfeited, canceled, exercised, paid, terminated or expired equity awards may be re-issued under the Plan. Of the 780,158 shares of Common Stock, 530,158 shares of Common Stock were previously registered on the Prior Registration Statements and, together with the 250,000 shares of Common Stock (which are intended to be used for the recycling of shares related to future awards under the Plan), do not represent an increase to the total number of shares of Common Stock that may be issued pursuant to the Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The Registrant shall send or give to each participant in the Plan the document(s) containing the information specified in Part I of Form S-8 as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). In accordance with the rules and regulations of the SEC, such documents are not being filed with or included in this Registration Statement. These documents, and the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the SEC are hereby incorporated by reference into this Registration Statement:
| (a) | the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2021, filed with the SEC on March 1, 2022; |
| (b) | the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, filed with the SEC on May 5, 2022; |
| (c) | the Registrant’s Current Reports on Form 8-K filed with the SEC on January 5, 2022, January 6, 2022, May 2, 2022, May 9, 2022 (as amended by the Registrant’s Form 8-K/A filed with the SEC on May 19, 2022), May 11, 2022 and June 23, 2022; and |
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14, or 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered herein 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 filing of such documents. Notwithstanding the foregoing, unless specifically stated to the contrary, none of the information disclosed by the Registrant under Items 2.02, 7.01 or 9.01 of any Current Report on Form 8-K that the Registrant may from time to time furnish to the SEC will be incorporated by reference into, or otherwise included in, this Registration Statement. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes 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 by reference herein 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 8. Exhibits.
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 Eagle, Idaho, on this 24th day of June, 2022.
| PETIQ, INC. | ||
| By: | /s/ Zvi Glasman | |
| Zvi Glasman | ||
| Chief Financial Officer | ||
Each person whose signature appears below hereby constitutes and appoints McCord Christensen and Zvi Glasman and each of them as such person’s true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for the undersigned and in the name of the undersigned, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents 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 such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents 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, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date |
|
/s/ McCord Christensen McCord Christensen |
Chief Executive Officer and Chairman of the (Principal Executive Officer) |
June 24, 2022 |
|
/s/ Zvi Glasman Zvi Glasman |
Chief Financial Officer (Principal Financial Officer and Principal |
June 24, 2022 |
|
/s/ Mark First Mark First |
Director | June 24, 2022 |
|
/s/ Allan Hall Allan Hall |
Director | June 24, 2022 |
|
/s/ Scott Huff Scott Huff |
Director |
June 24, 2022 |
|
/s/ Sheryl Oloughlin Sheryl Oloughlin |
Director |
June 24, 2022 |
|
/s/ Kim Lefko Kim Lefko |
Director |
June 24, 2022 |
|
/s/ Kenneth Walker Kenneth Walker |
Director |
June 24, 2022 |
Exhibit 5.1
June 24, 2022
PetIQ, Inc.
230 E. Riverside Dr.
Eagle, ID 83616
Ladies and Gentlemen:
We have acted as special counsel to PetIQ, Inc., a Delaware corporation (the “Company”), in connection with the Form S-8 Registration Statement (the “Registration Statement”) relating to the registration of the offer and sale of up to 2,670,158 shares (the “Shares”) of the Company’s Class A common stock, par value $0.001 per share (the “Common Stock”), issuable pursuant to the terms and in the manner set forth in the PetIQ, Inc. Amended and Restated 2017 Omnibus Incentive Plan (the “Plan”).
This opinion letter is delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Securities Act of 1933, as amended (the “Act”).
In connection with this opinion letter, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of: (i) the Registration Statement, to be filed with the Securities and Exchange Commission (the “SEC”) under the Act; (ii) the Second Amended and Restated Certificate of Incorporation of the Company, as in effect on the date hereof; (iii) the Amended and Restated By-Laws of the Company, as in effect on the date hereof; (iv) the Plan; and (v) resolutions of the compensation committee of the board of directors (the “Board”) and the Board of the Company relating to, among other things, the approval of the Plan, the reservation for issuance of the Shares issuable thereunder and the filing of the Registration Statement. We have also examined such other documents as we have deemed necessary or appropriate as a basis for the opinion set forth below.
In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such latter documents. As to any facts material to this opinion that we did not independently establish or verify, we have relied upon oral or written statements and representations of officers and other representatives of the Company and others.
Based upon the foregoing and subject to the assumptions, qualifications and limitations set forth herein, we are of the opinion that the Shares have been duly authorized and, when issued, paid for and delivered pursuant to the terms and in the manner set forth in the Plan, and assuming that the Shares have been and remain duly reserved for issuance within the limits of the Common Stock then remaining authorized but unissued, the Shares will be validly issued, fully paid and nonassessable.
PetIQ, Inc.
June 24, 2022
Page Two
The foregoing opinion is based upon and limited to the General Corporation Law of the State of Delaware (including the statutory provisions, the applicable provisions of the Delaware Constitution and reported judicial decisions interpreting the foregoing). We express no opinion herein as to any other laws, statutes, regulations or ordinances. This opinion is given as of the date hereof and we assume no obligation to update or supplement such opinion to reflect any facts or circumstances that may hereafter come to our attention or any changes that may hereafter occur. This opinion letter is being furnished solely for the Company’s benefit in connection with the offer, sale and issuance of the Shares and is not to be used, quoted or otherwise referred to for any other purpose without our prior written consent.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not thereby concede that we are experts within the meaning of the Act or that our firm is within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the SEC.
| Very Truly Yours, | |
| /s/ Winston & Strawn LLP |
Exhibit 23.1
KPMG LLP
Suite 600
205 North 10th Street
Boise, ID 83702-5798
Consent of Independent Registered Public Accounting Firm
We consent to the use of our reports dated March 1, 2022, with respect to the consolidated financial statements of PetIQ, Inc., and the effectiveness of internal control over financial reporting, incorporated herein by reference.
/s/ KPMG LLP
Boise, Idaho
June 24, 2022
KPMG LLP, a Delaware limited liability partnership and a member firm of
the KPMG global organization of independent member firms affiliated with
KPMG International Limited, a private English company limited by guarantee.
Exhibit 107
Calculation of Filing Fee Tables
Form
S-8
(Form Type)
PetIQ,
Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
| Security Type | Security Class Title | Fee Calculation Rule (1) | Amount Registered (2) | Proposed Maximum Offering Price Per Unit (3) | Maximum Aggregate Offering Price | Fee Rate | Amount of Registration Fee | |||||||||||||||||
| Equity | Common Stock, $0.001 par value per share | Other | 2,670,158 | $ | 14.81 | $ | 39,545,039.98 | .0000927 | $ | 3,665.83 | ||||||||||||||
| Total Offering Amounts | $ | 39,545,039.98 | $ | 3,665.83 | ||||||||||||||||||||
| Total Fee Offsets | $ | — | ||||||||||||||||||||||
| Net Fee Due | $ | 3,665.83 | ||||||||||||||||||||||
(1) Fee calculated in accordance with Rules 457(c) and (h) under the Securities Act of 1933 (the “Securities Act”).
(2) 2,670,158 additional shares of common stock of PetIQ, Inc., a Delaware corporation (the “Registrant”) covered by this Registration Statement on Form S-8 (the “Registration Statement”) are authorized and reserved for issuance under the PetIQ, Inc. Amended and Restated 2017 Omnibus Incentive Plan (the “Plan”). In accordance with Rule 416(a) under the Securities Act, this Registration Statement shall be deemed to cover any additional shares of common stock, par value $0.001 per share, that become issuable under the Plan to prevent dilution from stock splits, stock dividends or similar transactions.
(3) Estimated solely for purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) under the Securities Act on the basis of the average high and low sale prices reported for shares of the Registrant’s common stock on the NASDAQ Global Select Market on June 22, 2022, a date within five business days of the date of this Registration Statement.