As filed with the Securities and Exchange Commission on April 1, 2021
 
Registration No. 333-_________

  UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
FORM S-8
 
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
 
 
cbdMD, Inc.
(Exact name of registrant as specified in its charter)
 
North Carolina
47-3414576
(State or other jurisdiction of incorporation or organization)
(I.R.S. Employer Identification Number)
 
 
8845 Red Oak Boulevard, Charlotte, NC
28217
(Address of Principal Executive Offices)
(Zip Code)
 
cbdMD, Inc. 2021 Equity Compensation Plan
(Full title of plan)
 
Mr. T. Ronan Kennedy
Chief Financial Officer and Chief Operating Officer
8845 Red Oak Boulevard
Charlotte, NC 28217
(Name and address of agent for service)
 
Telephone (704) 445-3060
(Telephone number, including area code, of agent for service)
 
With a copy to:
Brian A. Pearlman, Esq.
Pearlman Law Group LLP
200 S. Andrews Avenue
Suite 901
Fort Lauderdale, FL 33301
Telephone (954) 880-9484
 
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.
 
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 13(a) of the Exchange Act. ☐


 
 
 
CALCULATION OF REGISTRATION FEE
 
Title of securities to be registered
 
Amount to be
registered (1)
 
 
Proposed maximum offering price per share (2)
 
 
Proposed maximum aggregate offering price
 
 
Amount of
registration fee
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Common stock, par value $0.001 per share
  5,000,000 
 $3.93 
 $19,650,000 
 $2,143.82 
 
(1)
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.
 
 
(2)
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 March 30, 2021, in accordance with Rule 457(c) under the Securities Act of 1933, as amended.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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:
 
our Annual Report on Form 10-K for the fiscal year ended September 30, 2020 as filed with the SEC on December 22, 2020;
our Quarterly Report on Form 10-Q for the period ended December 31, 2020 as filed with the SEC on February 9, 2021;
our Current Reports on Form 8-K as filed with the SEC on January 14, 2021, January 15, 2021, February 16, 2021, March 4, 2021, March 11, 2021, March 15, 2021 and March 16, 2021;
our definitive proxy statement on Schedule 14A as filed with the SEC on January 25, 2021; and
the description of our common stock contained in our Registration Statement on Form 8-A as filed with the SEC on November 15, 2017 and any further amendment or report filed hereafter for the purpose of updating such description.
 
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.
 
 
3
 
 
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.
 
 
4
 
 
(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.
 
 
5
 
 
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 April 1, 2021.
 
 
cbdMD, Inc.    
 
 
 
 
 
By:
 /s/ T. Ronan Kennedy
 
 
 
T. Ronan Kennedy,
 
 
 
Chief Financial Officer and Chief Operating Officer
 
 
             
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.
 
Name
 
Positions
 
Date
 
 
 
 
 
/s/ Martin A. Sumichrast
Martin A. Sumichrast
 
Chairman of the Board of Directors, co-Chief Executive Officer (co-principal executive officer)
 
April 1, 2021
 
 
 
 
 
/s/ Raymond S. Coffman
Raymond S. Coffman
 
co-Chief Executive Officer (co-principal executive officer) and Director
 
April 1, 2021
 
 
 
 
 
/s/ T. Ronan Kennedy
T. Ronan Kennedy
 
Chief Financial Officer (principal financial and accounting officer)
 
April 1, 2021
 
 
 
 
 
/s/ Bakari Sellers
Bakari Sellers
 
Director
 
April 1, 2021
 
 
 
 
 
/s/ Peter J. Ghiloni
Peter J. Ghiloni
 
Director
 
April 1, 2021
 
 
 
 
 
/s/ Scott G. Stephen
Scott G. Stephen
 
Director
 
April 1, 2021
 
 
 
 
 
/s/ William F. Raines, III
William F. Raines, III
 
Director
 
April 1, 2021
 
 
 
 
 
/s/ Sim Farar
Sim Farar
 
Director
 
April 1, 2021
 
 
6
 
 
EXHIBIT INDEX
 
 
  
  
  
Incorporated by Reference
  
Filed or
Furnished
No.
   
Exhibit Description
   
Form
   
Date Filed
   
Number
   
Herewith
 
 
 
 
 
 
 
 
 
 
 
 
2021 Equity Compensation Plan
 
8-K
 
1/14/21
 
10.1
 
 
 
Opinion of Pearlman Law Group LLP
 
 
 
 
 
 
 
Filed
 
Opinion of the Gavigan Law, PLLC
 
 
 
 
 
 
 
Filed
 
Consent of Cherry Bekaert LLP
 
 
 
 
 
 
 
Filed
 
Consent of Pearlman Law Group LLP (included in Exhibit 5.1)
 
 
 
 
 
 
 
Filed
 
Consent of the Gavigan Law, PLLC (included in Exhibit 5.2)
 
 
 
 
 
 
 
Filed
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
7