As
filed with the Securities and Exchange Commission on February 29, 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
Warby Parker Inc.
(Exact name of Registrant as specified in its
charter)
| Delaware |
|
80-0423634 |
|
(State or other jurisdiction of
Incorporation or organization)
|
|
(I.R.S. Employer
Identification No.)
|
233 Spring Street, 6th Floor East
New York, New York 10013
(646) 847-7215
(Address of principal executive offices) (Zip
code)
Warby Parker Inc. 2021 Incentive Award Plan
Warby Parker Inc. 2021 Employee Stock Purchase
Plan
(Full title of the plans)
Neil Blumenthal, Co-Founder and Co-Chief Executive
Officer
Dave Gilboa, Co-Founder and Co-Chief Executive
Officer
Warby Parker Inc.
233 Spring Street, 6th Floor East
New York, New York 10013
(646) 847-7215
(Name and address of agent for service) (Telephone
number, including area code, of agent for service)
With copies to:
| Steven Miller |
| Chris Utecht |
| Lindsay Buxbaum |
| Warby Parker Inc. |
| 233 Spring Street, 6th Floor East |
| New York, New York 10013 |
| (646) 847-7215 |
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
This
Registration Statement on Form S-8 is being filed for the purpose of registering an additional 5,892,462 shares of Warby Parker
Inc.’s (the “Registrant”) Class A common stock, $0.0001 par value per share (“Class A common stock”), to
be issued pursuant to the Warby Parker Inc. 2021 Incentive Award Plan (the “2021 Plan”) and an additional 1,178,492 shares
of the Registrant’s Class A common stock to be issued pursuant to the Warby Parker Inc. 2021 Employee Stock Purchase Plan (the “2021
ESPP”) and for which a Registration Statement of the Registrant on Form S-8 relating to the same employee benefit plans is effective.
INCORPORATION BY REFERENCE OF CONTENTS OF REGISTRATION
STATEMENT ON FORM S-8
The contents of the Registration Statements on
Form S-8 (File Nos. 333-259703, 333-263698 and 333-270140), filed with the Securities and Exchange Commission, relating to the 2021
Plan and the 2021 ESPP, are incorporated herein by reference.
* 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 New York, State of New York, on February 29, 2024.
| |
WARBY PARKER
INC. |
| |
|
|
| |
By: |
/s/ Neil Blumenthal |
| |
|
Neil Blumenthal |
| |
|
Co-Chief Executive Officer |
| |
|
|
| |
By: |
/s/ Dave Gilboa |
| |
|
Dave Gilboa |
| |
|
Co-Chief Executive Officer |
POWER OF ATTORNEY
Each
person whose signature appears below hereby constitutes and appoints Neil Blumenthal, Dave Gilboa, and Steven Miller, or each of
them singly, with full power to act without the other, such person’s true and lawful attorneys-in-fact and agents, with full power
of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign this registration
statement and any and all amendments, including post-effective amendments to this registration statement, and to file the same, with exhibits
and schedules thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary or desirable
to be done in connection therewith as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them, or their 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, this registration statement has been signed by the following persons in the capacities
and on the dates indicated.
|
Signature |
|
Title |
|
Date |
| |
|
|
|
/s/ Neil
Blumenthal |
|
Co-Chief Executive Officer and
Director
(Co-Principal Executive Officer) |
|
February 29, 2024 |
| Neil Blumenthal |
|
|
|
|
| |
|
|
|
/s/ Dave
Gilboa |
|
Co-Chief Executive Officer and Director
(Co-Principal
Executive Officer) |
|
February 29, 2024 |
| Dave Gilboa |
|
|
|
|
| |
|
|
|
/s/ Steven
Miller |
|
Chief Financial Officer |
|
February 29, 2024 |
| Steven Miller |
|
(Principal Financial Officer and Principal Accounting Officer) |
|
|
| |
|
|
|
/s/ Andrew
Hunt |
|
Director |
|
February 29, 2024 |
| Andrew Hunt |
|
|
|
|
| |
|
|
|
/s/ Jeffrey
Raider |
|
Director |
|
February 29, 2024 |
| Jeffrey Raider |
|
|
|
|
| |
|
|
|
|
| /s/ Teresa Briggs |
|
Director |
|
February 29, 2024 |
| Teresa Briggs |
|
|
|
|
| |
|
|
|
/s/ Joel
Cutler |
|
Director |
|
February 29, 2024 |
| Joel Cutler |
|
|
|
|
| |
|
|
|
/s/ Youngme
Moon |
|
Director |
|
February 29, 2024 |
| Youngme Moon |
|
|
|
|
| |
|
|
|
/s/ Gabrielle
Sulzberger |
|
Director |
|
February 29, 2024 |
| Gabrielle Sulzberger |
|
|
|
|
| |
|
|
|
|
| /s/ Ronald A. Williams |
|
Director |
|
February 29, 2024 |
| Ronald A. Williams |
|
|
|
|
Exhibit 5.1
| |
1271 Avenue of the Americas |
| |
New York, New York 10020-1401 |
| |
Tel: +1.212.906.1200 Fax: +1.212.751.4864 |
| |
www.lw.com |
 |
FIRM / AFFILIATE OFFICES |
| |
Austin |
Milan |
| February 29, 2024 |
Beijing |
Munich |
| |
Boston |
New York |
| |
Brussels |
Orange County |
| |
Century City |
Paris |
| |
Chicago |
Riyadh |
| |
Dubai |
San Diego |
| |
Düsseldorf |
San Francisco |
| |
Frankfurt |
Seoul |
| Warby Parker Inc. |
Hamburg |
Shanghai |
| 233 Spring Street, 6th Floor East |
Hong Kong |
Silicon Valley |
| New York, New York 10013 |
Houston |
Singapore |
| |
London |
Tel Aviv |
| |
Los Angeles |
Tokyo |
| |
Madrid |
Washington, D.C. |
Re: Registration Statement on Form S-8
To the addressee set forth above:
We have acted as special counsel to Warby Parker
Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing by the Company on
the date hereof with the Securities and Exchange Commission (the “Commission”) of a Registration Statement (the
“Registration Statement”) on Form S-8 under the Securities Act of 1933, as amended (the “Act”),
relating to the issuance of up to an aggregate of 7,070,954 shares of Class A common stock of the Company, $0.0001 par value per
share (the “Shares”), which may be issued pursuant to the Warby Parker Inc. 2021 Incentive Award Plan (the “2021
Plan”) and the Warby Parker Inc. 2021 Employee Stock Purchase Plan (the “ESPP”, and together with
the 2021 Plan, the “Plans” and each, a “Plan”). 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 related prospectus, other than as expressly stated herein with
respect to the issue of the Shares.
As such counsel, we have examined such matters
of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates
and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters.
We are opining herein as to the General Corporation Law of the State of Delaware (the “DGCL”), and we express
no opinion with respect to any other laws.
Subject to the foregoing and the other matters
set forth herein, it is our opinion that as of the date hereof, when the Shares shall have been duly registered on the books of the transfer
agent and registrar therefor in the name or on behalf of the purchasers, and have been issued by the Company for legal consideration of
not less than par value in the circumstances contemplated by the applicable Plan assuming in each case that the individual issuances,
grants or awards under the applicable Plan are duly authorized by all necessary corporate action and duly issued, granted or awarded and
exercised in accordance with the requirements of law and the applicable Plan (and the agreements duly adopted thereunder and in accordance
therewith), the issue and sale of the Shares will have been duly authorized by all necessary corporate action of the Company, and such
Shares will be validly issued, fully paid and non-assessable. In rendering the foregoing opinion, we have assumed that the Company will
comply with all applicable notice requirements regarding uncertificated shares provided in the DGCL.
February 29, 2024
Page 2
This opinion is for your benefit in connection
with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions
of the Act. We consent to your filing this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby
admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the
Commission thereunder.
| |
Sincerely, |
| |
|
| |
/s/ Latham & Watkins LLP |
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 2021 Incentive Award Plan and the 2021 Employee Stock Purchase Plan of Warby Parker Inc. of our reports dated
February 28, 2024, with respect to the consolidated financial statements of Warby Parker Inc. and the effectiveness of internal control
over financial reporting of Warby Parker Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2023, filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
New York, New York
February 29, 2024
Exhibit 107.1
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Warby Parker Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1—Newly Registered Securities
Security
Type |
Security Class
Title |
Fee Calculation Rule |
Amount
Registered (1)
|
Proposed
Maximum
Offering Price
Per Unit
|
Maximum
Aggregate
Offering Price
|
Fee
Rate |
Amount of
Registration Fee
|
| Equity |
Class A common stock, $0.0001 par value per share |
Rule 457(c) and Rule 457(h) |
7,070,954 (2) |
$14.05 (3) |
$99,346,903.70 |
$147.60
per $1,000,000 |
$14,663.60 |
| Total Offering Amounts |
|
$99,346,903.70 |
|
$14,663.60 |
| Total Fee Offsets (4) |
|
|
|
$0 |
| Net Fee Due |
|
|
|
$14,663.60 |
| (1) | In accordance with Rule 416 under the Securities Act of 1933,
as amended, this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued
to prevent dilution resulting from stock splits, stock dividends or similar transactions. |
| (2) | Consists of an additional 5,892,462 shares of Class A common
stock issuable under the Warby Parker Inc. 2021 Incentive Award Plan (the “2021 Plan”) pursuant to the terms of the 2021
Plan and an additional 1,178,492 shares of Class A common stock issuable under the Warby Parker Inc. 2021 Employee Stock Purchase Plan
(the “2021 ESPP”) pursuant to the terms of the 2021 ESPP. |
| (3) | Estimated solely for the purpose of calculating the registration
fee pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933, as amended, and based upon the average of the high
and low prices of Warby Parker Inc.’s (the “Registrant”) Class A common stock as reported on The New York Stock Exchange
on February 22, 2024. |
| (4) | The Registrant does not have any fee offsets. |
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