Securities Registration: Employee Benefit Plan (s-8)
July 28 2022 - 8:46AM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on July 28, 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
LEMONADE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of
incorporation or organization) |
32-0469673
(IRS Employer Identification No.) |
5 Crosby Street, 3rd Floor
New York, New York 10013
(Address of Principal Executive Offices)
(ZIP Code)
LEMONADE, INC. 2020 INCENTIVE AWARD PLAN
METROMILE, INC. 2021 EQUITY INCENTIVE
PLAN
METROMILE, INC. AMENDED AND RESTATED 2011
EQUITY INCENTIVE PLAN
(Full title of the plan)
TIM BIXBY
CHIEF FINANCIAL OFFICER
LEMONADE, INC.
5 CROSBY STREET, 3rd FLOOR
NEW YORK, NEW YORK 10013
(Name and address of agent for service)
(844) 733-8666
(Telephone number, including area code, of agent
for service)
Copy to:
MARC D. JAFFE
RACHEL W. SHERIDAN
LATHAM & WATKINS LLP
1271 Avenue of the Americas
New York, NY 10020
(212) 906-1200
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 of 1934, as amended (the “Exchange Act”).
Large accelerated filer |
x |
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Accelerated filer |
¨ |
Non-accelerated filer |
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Smaller reporting company |
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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
(the “Commission”) for the purpose of registering shares of Lemonade, Inc.’s (the
“Company” or the “registrant”) Common Stock, par value $0.00001 per share (“Common
Stock”), issuable pursuant to equity awards assumed by the Company as a result of the consummation on July 28, 2022,
of the transactions contemplated by the Agreement and Plan of Merger, dated as of November 8, 2021, by and among the Company,
Metromile, Inc., Citrus Merger Sub A, Inc., and Citrus Merger Sub B, LLC.
This Registration Statement is also being filed
with the Commission for the purpose of registering an additional 3,083,050 shares of the Company’s Common Stock issuable under the
Company’s 2020 Incentive Award Plan (the “2020 Plan”) for which registration statement of the Company on Form S-8 (File No. 333-239656) is
effective, which, as a result of the operation of an automatic annual increase provision therein, added 3,083,050 shares of Common Stock.
In accordance with Section E of the General Instructions to Form S-8, the contents of the registration statements on Form S-8 previously
filed by the registrant with the Commission on July 2, 2020 (File No. 333-239656) and on March 9, 2021 (File No. 333-254011), together
with all exhibits filed therewith or incorporated therein by reference to the extent not otherwise amended or superseded by the contents
hereof or otherwise, are incorporated herein by reference into this Registration Statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified
in this Part I will be sent or given to participants as specified by Rule 428(b)(1) under the Securities Act of 1933, as
amended (the “Securities Act”). In accordance with the rules and regulations of the Commission and the instructions
to Form S-8, such documents are not being filed with 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 the registrant statement pursuant to Item 3 of Part II of this Form S-8, 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 with the Commission
are incorporated herein by reference:
1. The
Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021 (the “Form 10-K”),
filed with the Commission on March 1, 2022.
2. The information specifically incorporated
by reference into the Form 10-K from the Company’s definitive
proxy statement on Schedule 14A, filed with the Commission on April 29, 2022.
3. The Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2022, filed with the Commission on May 10, 2022.
4. The Company’s Current Reports on Form 8-K,
filed with the Commission on March 9, 2022, April 14, 2022 and June 14, 2022.
5. The description of the Company’s Common
Stock included in the Company’s registration statement on Form 8-A (Exchange Act File No. 001-39367), filed with the Commission on July 2, 2020, as updated by the description of the Company’s Common Stock contained in Exhibit 4.3 to the Form 10-K.
All documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement, and 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 in this Registration Statement and to be a part hereof from the date
of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance
with Commission rules shall not be deemed incorporated by reference into this Registration Statement. Any statement contained 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 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 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.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Lemonade, Inc. is incorporated under the
laws of the state of Delaware. Section 102 of the Delaware General Corporation Law, as amended (the “DGCL”), allows a
corporation to eliminate the personal liability of a director to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except in cases where the director breached his or her duty of loyalty to the corporation or its stockholders,
failed to act in good faith, engaged in intentional misconduct or a knowing violation of the law, willfully or negligently authorized
the unlawful payment of a dividend or approved an unlawful stock redemption or repurchase or obtained an improper personal benefit. The
registrant’s amended and restated certificate of incorporation contains a provision which eliminates directors’ personal liability
as set forth above.
The registrant’s amended and restated certificate
of incorporation and amended and restated bylaws provide in effect that the registrant shall indemnify its directors and officers to the
extent permitted by the Delaware law. Section 145 of the DGCL provides that a Delaware corporation has the power to indemnify its
directors, officers, employees, and agents in certain circumstances.
Subsection (a) of Section 145 of the
DGCL empowers a corporation to indemnify any director, officer, employee or agent, or former director, officer, employee or agent, who
was or is a party or is threatened to be made a 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 the corporation), against expenses (including attorneys’
fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding,
provided that such director, officer, employee or agent acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, provided that such director,
officer, employee or agent had no reasonable cause to believe that his or her conduct was unlawful.
Subsection (b) of Section 145 of the
DGCL empowers a corporation to indemnify any director, officer, employee or agent, or former director, officer, employee or agent, who
was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above,
against expenses (including attorneys’ fees) actually and reasonably incurred in connection with the defense or settlement of such
action or suit provided that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the corporation, except that no indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court
in which such action or suit was brought shall determine that despite the adjudication of liability such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper.
Section 145 further provides that to the
extent that a present or former director or officer of a corporation has been successful in the defense of any action, suit or proceeding
referred to in subsections (a) and (b) of Section 145 or in the defense of any claim, issue or matter therein, he or she
shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection therewith;
that indemnification provided by Section 145 shall not be deemed exclusive of any other rights to which the party seeking indemnification
may be entitled; that the corporation is empowered to purchase and maintain insurance on behalf of a director, officer, employee or agent
of the corporation against any liability asserted against him or her or incurred by him or her in any such capacity or arising out of
his or her status as such whether or not the corporation would have the power to indemnify him or her against such liabilities under Section 145;
and that, unless indemnification is ordered by a court, the determination that indemnification under subsections (a) and (b) of
Section 145 is proper because the director, officer, employee or agent has met the applicable standard of conduct under such subsections
shall be made by (1) a majority vote of the directors who are not parties to such action, suit or proceeding (or a committee of such
directors designated by majority vote of such directors), even though less than a quorum, or (2) if there are no such directors,
or if such directors so direct, by independent legal counsel in a written opinion, or (3) by the stockholders.
The right to indemnification conferred by the
registrant’s amended and restated certificate of incorporation and amended and restated bylaws also includes the right to be paid
the expenses (including attorneys’ fees) incurred by a present or former director or officer in defending any civil, criminal, administrative,
or investigative action, suit, or proceeding in advance of its final disposition, provided, however, that if Delaware law requires, an
advancement of expenses incurred by a director or officer in his or her capacity as a director or officer shall be made only upon delivery
to the registrant of an undertaking by or on behalf of such director or officer to repay all amounts so advanced if it is ultimately determined
that such person is not entitled to be indemnified for such expenses under the registrant’s amended and restated certificate of
incorporation, amended and restated bylaws, or otherwise.
In addition, the registrant intends to enter into
indemnification agreements with each of its directors and certain of its officers, a form of which will be filed as an exhibit to a pre-effective
amendment to this Registration Statement. These agreements require the registrant to indemnify such persons to the fullest extent permitted
under Delaware law against liabilities that may arise by reason of their service to the registrant, and to advance expenses incurred as
a result of any action, suit, or proceeding against them as to which they could be indemnified.
The registrant has in effect insurance policies
for general officers’ and directors’ liability insurance covering all of its officers and directors.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits listed on the accompanying Index to Exhibits are filed
as part hereof, or incorporated by reference into, this Registration Statement. See Exhibit Index below.
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Exhibit Index |
4.1 |
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Amended and Restated Certificate of Incorporation of Lemonade, Inc. (incorporated by reference to Exhibit 3.1 to the registrant’s Current Report on Form 8-K (File No. 001-39367), filed on July 10, 2020 with the Commission) |
4.2 |
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Amended and Restated Bylaws of Lemonade, Inc. (incorporated by reference to Exhibit 3.2 to the registrant's Current Report on Form 8-K (File No. 001-39367), filed on July 10, 2020 with the Commission) |
5.1* |
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Opinion of Latham & Watkins LLP |
23.1* |
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Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm |
23.2* |
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Consent of Latham & Watkins LLP (included in Exhibit 5.1) |
24.1* |
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Power of Attorney (included on the signature page hereto) |
99.1 |
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Lemonade, Inc. 2020 Incentive Award Plan (incorporated by reference to Exhibit 10.9 to the registrant’s Registration Statement on Form S-1 (File No. 333-239007), filed on June 23, 2020 with the Commission) |
99.2 |
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Metromile, Inc. 2021 Equity Incentive Plan (incorporated by reference to Annex B to INSU Acquisition Corp. II's Proxy Statement/Prospectus included in the Registration Statement on Form S-4/A (File No. 333-250989), filed on January 14, 2021 with the Commission) |
99.3 |
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Metromile, Inc. Amended and Restated 2011 Equity Incentive Plan, as amended (incorporated by reference to Exhibit 10.17 to INSU Acquisition Corp. II's Registration Statement on Form S-4/A (File No. 333-250989), filed on January 14, 2021 with the Commission) |
107* |
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Filing Fee Table |
* Filed herewith.
Item 9. Undertakings.
a. The undersigned Company hereby undertakes:
1. To file, during any period in which
offers or sales are being made pursuant to this Registration Statement, 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 this 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 this
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 is 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 percent 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 this Registration Statement or any material change to such information
in this Registration Statement;
provided, however, that paragraphs
(i) and (ii) above 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 Company pursuant to Section 13 or 15(d) of
the Exchange Act that are incorporated by reference in this 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 Company hereby undertakes that,
for purposes of determining any liability under the Securities Act, each filing of the Company’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 this 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 Company pursuant to the provisions
described under “Item 6—Indemnification of Directors and Officers”, or otherwise, the Company 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 Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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 Company 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 New York, State of New York, on July 28, 2022.
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LEMONADE, INC. |
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By |
/s/ Daniel Schreiber |
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Daniel Schreiber |
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Co-Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL MEN AND WOMEN BY
THESE PRESENTS, that each person whose signature appears below hereby severally constitutes and appoints each of Daniel Schreiber and
Tim Bixby as such person’s true and lawful attorney-in-fact and agent, each acting alone, with full power of substitution and resubstitution,
for and in such person’s name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement and all documents relating thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Commission, granting unto such attorneys-in-fact and agents, each acting alone, full power
and authority to do and perform each and every act and thing necessary or advisable 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 such attorneys-in-fact and
agents, each acting alone, or such person’s substitute or substitutes, lawfully may do or cause to be done by virtue hereof.
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.
Signature |
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Title |
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Date |
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/s/ Daniel Schreiber |
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Co-Chief Executive Officer (Co-Principal Executive Officer) and Chairman of the Board of Directors |
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July 28, 2022 |
Daniel Schreiber |
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/s/ Shai Wininger |
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Co-Chief Executive Officer (Co-Principal Executive Officer) and Director |
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July 28, 2022 |
Shai Wininger |
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/s/ Tim Bixby |
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Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
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July 28, 2022 |
Tim Bixby |
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/s/ Michael Eisenberg |
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Director |
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July 28, 2022 |
Michael Eisenberg |
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/s/ Irina Novoselsky |
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Director |
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July 28, 2022 |
Irina Novoselsky |
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/s/ Mwashuma Nyatta |
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Director |
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July 28. 2022 |
Mwashuma Nyatta |
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/s/ Silvija Martincevic |
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Director |
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July 28, 2022 |
Silvija Martincevic |
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