As
filed with the Securities and Exchange Commission on January 18, 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
Better
Choice Company Inc.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
83-4284557 |
| (State
or other jurisdiction of incorporation or organization) |
|
(I.R.S.
Employer Identification No.) |
| |
|
|
| 12400
Race Track Road, Tampa, Florida |
|
33626 |
| (Address
of Principal Executive Offices) |
|
(Zip
Code) |
AMENDED
AND RESTATED 2019 INCENTIVE AWARD PLAN
(Full
title of the plan)
Kent
Cunningham
Chief
Executive Officer
12400
Race Track Road
Tampa,
FL 33626
(813)
659-5921
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copy
to:
Louis
Lombardo, Esq.
Denis
A. Dufresne, Esq.
Meister
Seelig & Fein LLP
125
Park Avenue, 7th Floor
New
York, New York 10017
Tel:
(212) 655-3500
Fax:
(212) 655-3535
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 is being filed for the purpose of increasing the number of securities of the same class as other securities for
which a Registration Statement of the registrant on Form S-8 relating to the same employee benefit plan is effective.
The
registrant previously registered shares of its common stock, par value $0.001 per share (“Common Stock”) for issuance under
the Amended and Restated 2019 Incentive Award Plan under a Registration Statement on Form S-8 filed with the Securities and Exchange
Commission (the “Commission”) on July 16, 2021 (File No. 333- 257986) and a Registration Statement on Form S-8 filed with
the Commission on July 25, 2022 (File No. 333- 262340). Pursuant to General Instruction E to Form S-8, this Registration Statement hereby
incorporates by reference the contents of the Registration Statements referenced above.
EXHIBITS
INDEX
*
Filed herewith
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 Tampa, State of Florida on January 18, 2024.
| |
BETTER
CHOICE COMPANY INC. |
| |
|
| Date:
January 18, 2024 |
By: |
/S/
CAROLINA MARTINEZ |
| |
|
Carolina
Martinez |
| |
|
Chief
Financial Officer
(Principal
Financial and Accounting Officer) |
POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Carolina Martinez his/her true and
lawful attorney-in-fact, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any
and all capacities to sign any and all 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 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 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 attorney-in-fact
or his/her substitute, each acting alone, may lawfully do or cause to be done by virtue thereof.
Pursuant
to the requirements of the Securities Exchange Act of 1933, as amended, this Registration Statement has been signed below by the following
persons on behalf of the registrant in the capacities and on the dates indicated.
| Signature |
|
Title |
|
Date |
/S/
KENT CUNNINGHAM |
|
Chief
Executive Officer |
|
January
18, 2024 |
| Kent
Cunningham
| |
(Principal
Executive Officer) |
|
|
| |
|
|
|
|
/S/
CAROLINA MARTINEZ |
|
Chief
Financial Officer |
|
January
18, 2024 |
| Carolina
Martinez |
|
(Principal Financial and Accounting Officer) |
|
|
| |
|
|
|
|
/s/
MICHAEL YOUNG |
|
Director
| |
January
18, 2024 |
| Michael
Young |
|
|
|
|
| |
|
|
|
|
/s/
LIONEL F. CONACHER |
|
Director |
|
January
18, 2024 |
| Lionel
F. Conacher
| |
|
|
|
| |
|
|
|
|
/s/
GIL FRONZAGLIA |
|
Director |
|
January
18, 2024 |
| Gil
Fronzaglia |
|
|
|
|
| |
|
|
|
|
/s/
ARLENE DICKINSON |
|
Director |
|
January
18, 2024 |
| Arlene
Dickinson
| |
|
|
|
| |
|
|
|
|
/s/
JOHN M. WORD III |
|
Director |
|
January
18, 2024 |
| John
M. Word III
| |
|
|
|
Exhibit
5.1
January
18, 2024
The
Board of Directors
Better
Choice Company Inc.
12400
Race Track Road
Tampa,
Florida 33626
| |
Re: |
2019 Amended and Restated Incentive Award Plan |
Ladies and Gentlemen:
We
have acted as counsel to Better Choice Company Inc., a Delaware corporation (the “Company”) in connection with the
registration by the Company of an aggregate of 6,151,142 shares of its common stock, $0.001 par value per share (the “Shares”),
issuable under the Company’s 2019 Amended and Restated Incentive Award Plan (the “Plan”). 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 January 18, 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 the related prospectuses, other than
as expressly stated herein with respect to the issuance of the Shares.
In
that connection, we have reviewed originals or copies identified to our satisfaction of the following documents (collectively, the “Documents”):
(a)
The Registration Statement and related prospectus;
(b)
The Plan;
(c)
The certificate of incorporation of the Company, filed as Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q filed with
the Commission on November 14, 2023 (the “Form 10-Q”), as filed with the Secretary of State of Delaware on January 4, 2019,
as amended by those certain certificates of amendment filed as Exhibits 3.2 – 3.5 to the Form 10-Q, as filed with the Secretary
of State of Delaware on February 5, 2019, March 14, 2019, April 22, 2019, July 31, 2020, respectively (collectively, the “Certificate
of Incorporation”), the certificate of designations, powers, respectively (collectively, the “Certificate of Incorporation”),
the certificate of designations, powers, preferences and other rights of preferred stock and qualifications limitations and restrictions
thereof of Series F Preferred Stock of the Company, in the form filed as Exhibit 3.8 to the Form 10-Q (the “Certificate of Designations”
and together with the Certificate of Incorporation, the “Charter”) and the bylaws of the Company as presently in effect,
in the form filed as Exhibit 3.7 to the Form 10-Q (such bylaws, together with the Charter, the “Governing Documents”), all
as certified by an officer of the Company as of a recent date; and
The
Board of Directors
January
18, 2024
Page
2 of 3
(d)
Resolutions adopted by the Company’s board of directors and stockholders adopting the Plan and authorizing the issuance of awards
and Shares thereunder, as certified by an officer of the Company as of a recent date;
The
opinions set forth herein are subject to the following qualifications, which are in addition to any other qualifications contained herein:
A.
We have assumed without verification the genuineness of all signatures on all documents, the authority of the parties (other than the
Company) executing such documents, the authenticity of all documents submitted to us as originals, and the conformity to original documents
of all documents submitted to us as copies.
B.
The opinions set forth herein are based on existing laws, ordinances, rules, regulations, court and administrative decisions as they
presently have been interpreted and we can give no assurances that our opinions would not be different after any change in any of the
foregoing occurring after the date hereof.
C.
We have assumed without verification that, with respect to the minutes of any meetings of the stockholders of the Company or of the Board
of Directors or any committees thereof of the Company that we have examined, due notice of the meetings was given or duly waived, the
minutes accurately and completely reflect all actions taken at the meetings and a quorum was present and acting throughout the meetings.
D.
We have assumed without verification the accuracy and completeness of the information contained in (i) the Registration Statement (including
but not limited to statements therein as to the number of shares of common stock issued and outstanding), as well as all of the other
Documents and (ii) all corporate records made available to us by the Company.
E.
We have assumed that the form of certificates representing the Shares to be issued pursuant to the Plan will conform to the applicable
requirements of the General Corporation Law of the State of Delaware (the “DGCL”) and the Governing Documents.
F.
We express no opinion herein as to the laws of any state or jurisdiction other than the DGCL and the federal laws of the United States
of America. As to matters governed by the laws specified in the foregoing sentence, we have relied exclusively on the latest standard
compilations of such statutes and laws as reproduced in commonly accepted unofficial publications available to us. The opinions herein
are as of the date hereof and are based on current law and facts and circumstances. We have no obligation, and expressly decline any
undertaking, to revise or supplement this opinion or otherwise advise you should applicable law or the existing facts and circumstances
change.
The
Board of Directors
January
18, 2024
Page
3 of 3
Based
on the foregoing, upon the assumptions that there will be no changes in the documents we have examined and the other matters referred
to above, we are of the opinion that the Shares have been duly authorized for issuance and, when the Shares are issued and paid for in
accordance with the terms and conditions of the Plan, the Shares will be validly issued, fully paid and nonassessable.
It
is understood that this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement
is in effect.
Please
note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters.
We
hereby consent to the filing of this opinion with the Commission in connection with the Registration Statement in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such consent, we do not hereby admit that we are
in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
Very
truly yours,
/s/ Meister
Seelig & Fein PLLC
Exhibit
23.2
INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM’S CONSENT
We hereby consent to the incorporation by reference in this Registration Statement of our report dated March 28,
2023, relating to the consolidated financial statements of Better Choice Company Inc. (the “Company”) appearing in the Company’s
Annual Report on Form 10-K for the year ended December 31, 2022. Our report contains an explanatory paragraph regarding the Company’s
ability to continue as a going concern.
| /s/ BDO USA, P.C. |
|
| |
|
| Tampa,
Florida |
|
| January
18, 2024 |
|
Exhibit
107
Calculation
of Filing Fee Tables
FORM
S-8
REGISTRATION
STATEMENT
(Form
Type)
Better
Choice Company Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered Securities
| Security Type | |
Security Class Title | |
Fee
Calculation
Rule | |
Amount
to be Registered(1) | | |
Proposed Maximum Offering Price Per Share (3) | | |
Maximum Aggregate Offering Price | | |
Fee Rate | | |
Amount of Registration Fee | |
| Equity | |
Common Stock, $0.001 par value share | |
Rule 457(c) and Rule 457(h) | |
| 6,151,142 | (2) | |
$ | 0.26 | | |
$ | 1,602,372.36 | | |
| 0.00014760 | | |
$ | 236.51 | |
| Total Offering Amounts | |
| | | |
| | | |
| | | |
$ | 236.51 | |
| Total Fees Previously Paid | |
| | | |
| | | |
| | | |
$ | 0 | |
| Total Fee Offsets | |
| | | |
| | | |
| | | |
$ | 0 | |
| Net Fee Due | |
| | | |
| | | |
| | | |
$ | 236.51 | |
| (1)
|
Pursuant
to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement
shall also cover any additional shares of common stock, par value $0.001 per share (“Common Stock”), of Better Choice
Company Inc. (the “Company”) that may become issuable under the Company’s 2019 Amended and restated Incentive Award
Plan (the “2019 Plan”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected
without receipt of consideration that increases the number of outstanding shares of Common Stock. |
| |
|
| (2)
|
Represents
shares of Common Stock that were automatically added to the shares authorized for issuance under the Amended and Restated 2019 Incentive
Award Plan on January 1, 2023 and January 1, 2024 pursuant to an “evergreen” provision contained in the Plan. Pursuant
to such provision, on January 1st of each year from 2021 through 2029, the number of shares authorized for issuance under the Plan
is automatically increased by: (a) a number equal to 10% of the total number of shares of Common Stock outstanding (on an as-converted
basis) on December 31st of the preceding calendar year; or (b) a number determined by the Registrant’s board of directors that
is less than the amount set forth in the foregoing clause (a). |
| |
|
| (3)
|
Estimated
solely for purposes of calculating the registration fee pursuant to Rules 457(h) and 457(c) of the Securities Act, and based upon
the average of the high and low sales prices ($0.2710 and $0.2500) of the Common Stock as reported on the NYSE American
on January 17, 2024. |
Better Choice (AMEX:BTTR)
Historical Stock Chart
From Mar 2024 to Apr 2024
Better Choice (AMEX:BTTR)
Historical Stock Chart
From Apr 2023 to Apr 2024
