Securities Registration: Employee Benefit Plan (s-8)
April 19 2022 - 06:04AM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on April 18, 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
BRC INC.
(Exact name of registrant as specified in its
charter)
Delaware |
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87-3277812 |
(State
or other Jurisdiction of
Incorporation Or Organization) |
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(I.R.S.
Employer
Identification Number) |
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1144
S. 500 W
Salt
Lake City, UT |
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84101 |
(Address
of Principal Executive Offices) |
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(ZIP
Code)) |
BRC Inc. 2022 Omnibus Incentive Plan
BRC Inc. 2022 Employee Stock Purchase Plan
(Full title of the plan)
Andrew McCormick
General Counsel
BRC Inc.
1144 S. 500 W
Salt Lake City, UT 84101
(801) 874-1189
(Name, address and telephone number, including
area code, of agent for service)
Copies of all communications, including communications
sent to agent for service, should be sent to:
Joshua N. Korff, P.C.
Steven V. Napolitano, P.C.
Peter S. Seligson
Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
(212) 446-4800
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 |
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Accelerated filer |
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Non-accelerated filer |
x |
Smaller reporting company |
¨ |
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Emerging growth company |
x |
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. ¨
The Registration Statement shall become effective upon filing in
accordance with Rule 462 under the Securities Act.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. |
Plan Information. |
The documents containing the information specified in Part I will
be delivered in accordance with Rule 428(b) 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 prospectuses
or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents, and the documents incorporated by reference
in this Registration Statement pursuant to Item 3 of Part II of the Form S-8, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
Item 2. |
Registrant Information and Employee Plan Annual Information. |
The written statement required by Item 2 of Part I is included
in documents that will be delivered to participants in the plans covered by this Registration Statement pursuant to Rule 428(b) of
the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. |
Incorporation of Documents by Reference. |
BRC Inc. (the “Company” or the “Registrant”)
hereby incorporates by reference into this registration statement (the “Registration Statement”) the following documents previously
filed with the Securities and Exchange Commission (the “Commission”).
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to the Registration
Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference into this Registration Statement and to be a part hereof from the date of the filing of such documents,
except that information furnished to the Commission under Item 2.02 or Item 7.01 in Current Reports on Form 8-K and any exhibit relating
to such information, shall not be deemed to be incorporated by reference in this Registration Statement.
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained in this Registration Statement, or in any other subsequently filed document which also
is or is deemed to be incorporated by reference in this Registration Statement, modifies or supersedes such earlier statement. Any 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. |
Not applicable.
Item 6. |
Indemnification of Directors and Officers. |
Section 102(b)(7) of the Delaware General Corporation Law
(the “DGCL”) allows a corporation to provide in its certificate of incorporation that a director of the corporation will not
be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except where
the director breached the duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law,
authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal
benefit. The Company’s certificate of incorporation provides for this limitation of liability.
Section 145 of the DGCL, provides, among other things, that a
Delaware corporation may indemnify any person who was, is or is threatened to be made, party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation),
by reason of the fact that such person is or was an officer, director, employee or agent of such corporation or is or was serving at the
request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include
expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable
cause to believe that his or her conduct was unlawful. A Delaware corporation may indemnify any persons who were or are a party to any
threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person is or was
a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’
fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such
person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests,
provided further that no indemnification is permitted without judicial approval if the officer, director, employee or agent is adjudged
to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred
to above, the corporation must indemnify him or her against the expenses (including attorneys’ fees) which such officer or director
has actually and reasonably incurred.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted
against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the
corporation would otherwise have the power to indemnify such person under Section 145.
The Company’s bylaws provide that we must indemnify and advance
expenses to our directors and officers to the full extent authorized by the DGCL.
We have entered into indemnification agreements with each of our directors
and executive officers. Such agreements may require us, among other things, to advance expenses and otherwise indemnify our executive
officers and directors against certain liabilities that may arise by reason of their status or service as executive officers or directors,
to the fullest extent permitted by law. We intend to enter into indemnification agreements with any new directors and executive officers
in the future.
The indemnification rights set forth above shall not be exclusive of
any other right which an indemnified person may have or hereafter acquire under any statute, any provision of the Company’s certificate
of incorporation, the Company’s bylaws, agreement, vote of stockholders or disinterested directors or otherwise. Notwithstanding
the foregoing, the Company shall not be obligated to indemnify a director or officer in respect of a proceeding (or part thereof) instituted
by such director or officer, unless such proceeding (or part thereof) has been authorized by the Board pursuant to the applicable procedure
outlined in the Company’s bylaws.
Section 174 of the DGCL provides, among other things, that a director,
who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption, may be held jointly
and severally liable for such actions. A director who was either absent when the unlawful actions were approved or dissented at the time
may avoid liability by causing his or her dissent to such actions to be entered in the books containing the minutes of the meetings of
the board of directors at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.
The Company maintains and expect to maintain standard policies of insurance
that provide coverage (1) to its directors and officers against loss rising from claims made by reason of breach of duty or other
wrongful act and (2) to the Company with respect to indemnification payments that the Company may make to such directors and officers.
These provisions may discourage stockholders from bringing a lawsuit
against our directors for breach of their fiduciary duty. These provisions also may have the effect of reducing the likelihood of derivative
litigation against directors and officers, even though such an action, if successful, might otherwise benefit the Company and our stockholders.
Furthermore, a stockholder’s investment may be adversely affected to the extent we pay the costs of settlement and damage awards
against officers and directors pursuant to these indemnification provisions.
The Company believes that these provisions, the insurance and the indemnity
agreements are necessary to attract and retain talented and experienced officers and directors.
Item 7. |
Exemption from Registration Claimed. |
Not applicable.
EXHIBIT INDEX
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
a 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 Exchange
Act 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.
(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 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.
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 Salt Lake City, State of Utah,
on the 18th of April 2022.
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BRC Inc. |
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By: |
/s/
Thomas E. Davin |
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Name: |
Thomas E. Davin |
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Title: |
Co-Chief Executive Officer |
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
each of Evan Hafer and Thomas E. Davin as his or her true and lawful attorney-in-fact and agent, with full power of substitution and revocation,
for him or her and in his or her name, place and stead, in any and all capacities, to execute any or all amendments, including any post-effective
amendments and supplements to this Registration Statement, and any additional Registration Statement filed pursuant to Rule 462,
and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission,
granting unto each said attorney-in-fact and agent 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 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 below.
Signature |
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Title |
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/s/ Evan Hafer |
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Chief Executive Officer and Chairman of the
Board of Directors
(Co-Principal Executive Officer) |
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April 18, 2022 |
Evan Hafer |
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/s/ Thomas E.
Davin |
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Co-Chief Executive Officer and Director
(Co-Principal Executive Officer) |
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April 18, 2022 |
Thomas E. Davin |
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/s/ Gregory
J. Iverson |
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Chief Financial Officer
(Principal Financial Officer and Principal Accounting
Officer) |
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April 18, 2022 |
Gregory J. Iverson |
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/s/ Katy Dickson |
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Director |
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April 18, 2022 |
Katy Dickson |
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/s/ George Munoz |
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Director |
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April 18, 2022 |
George Munoz |
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/s/ Roland Smith |
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Director |
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April 18, 2022 |
Roland Smith |
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/s/ Steven Taslitz |
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Director |
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April 18, 2022 |
Steven Taslitz |
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/s/ Glenn Welling |
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Director |
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April 18, 2022 |
Glenn Welling |
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