As filed with the U.S. Securities and Exchange Commission on May 8, 2019
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LEAF GROUP LTD.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware |
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20-4731239 |
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(State or Other Jurisdiction of
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(I.R.S. Employer
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1655 26th Street
Santa Monica, CA, 90404
(Address of Registrant’s Principal Executive Offices, Including Zip Code)
LEAF GROUP LTD. 2010 INCENTIVE AWARD PLAN
(Full titles of the plans)
Jantoon Reigersman
Chief Financial Officer
Leaf Group Ltd.
1655 26th Street
Santa Monica, California 90404
(310) 656-6253
(Name, address and telephone number, including area code, of agent for service)
Copies to:
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Anthony J. McCusker, Esq. |
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Adam F. Wergeles, Esq. |
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Bradley C. Weber, Esq. |
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General Counsel |
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Goodwin Procter LLP |
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Leaf Group Ltd. |
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601 Marshall Street |
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1655 26th Street |
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Redwood City, CA 94063 |
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Santa Monica, California 90404 |
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(650) 752-3100 |
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(310) 656-6253 |
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. (Check one):
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Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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Smaller reporting company |
x |
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Emerging growth company |
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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. o
CALCULATION OF REGISTRATION FEE
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Title of Securities
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Amount
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Proposed
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Proposed
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Amount of
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Common Stock, $0.0001 par value per share |
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—2010 Incentive Award Plan |
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1,200,000 |
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$8.15 |
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$9,780,000 |
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$1,185.34 |
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(1) Pursuant to Rule 416 of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s Common Stock that become issuable under the Registrant’s 2010 Incentive Award Plan (the “2010 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 an automatic increase on January 1, 2019 to the number of shares available for issuance under the 2010 Plan in accordance with the automatic annual increase provisions of the 2010 Plan.
(3) Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and (h) under the Securities Act on the basis of $8.15 per share, which represents the average of the high and low prices of the Registrant’s common stock as reported on the New York Stock Exchange on May 6, 2019.
REGISTRATION OF ADDITIONAL SHARES
PURSUANT TO GENERAL INSTRUCTION E
This Registration Statement on Form S-8 is being filed by Leaf Group Ltd. (the “Registrant”) to register an additional 1,200,000 shares of common stock of the Registrant, $0.0001 par value per share (the “Common Stock”), reserved for issuance under the Leaf Group Ltd. 2010 Incentive Award Plan, as amended from time to time (the “2010 Plan”).
Pursuant to General Instruction E of Form S-8, and only with respect to the shares of Common Stock issuable under the 2010 Plan, the contents of the Registration Statement on Form S-8 of the Registrant filed with the Securities and Exchange Commission (the “Commission”) on February 18, 2011 (File No. 333-172371) are hereby incorporated in this Registration Statement on Form S-8 by reference to the extent not replaced hereby.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 to be contained in the Section 10(a) prospectus is not being filed with or included in this Registration Statement (by incorporation by reference or otherwise) in accordance with the rules and regulations of the Commission. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the equity benefit plans covered by this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference .
The following documents filed with the Commission by the Registrant are incorporated by reference into this Registration Statement on Form S-8:
(a) The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2018, filed with the Commission on March 4, 2019;
(b) The Registrant's Definitive Proxy Statement on Schedule 14A filed with the Commission on April 15, 2019;
(c) The Registrant's Current Reports on Form 8-K filed with the Commission on March 29, 2019 and April 15, 2019 (except for any portions furnished pursuant to Item 2.02 or Item 7.01 thereof and any corresponding exhibits thereto not filed with the Commission);
(d) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since the end of the fiscal year covered by the Registrant’s Annual Report on Form 10-K referred to in (a) above; and
(e) The description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form 8-A (Registration No. 001-35048) filed with the Commission on January 21, 2011 under Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be 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 the rules of the Commission 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 herein or in any subsequently filed document which also is deemed to be incorporated by reference herein 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 .
Section 145(a) of the Delaware General Corporation Law (the “DGCL”) provides, in general, that a corporation may indemnify any person 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), because he or she 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, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit, or proceeding, if he or she 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, had no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the DGCL provides, in general, that a corporation may indemnify any person 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 because the person 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, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if he or she 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 shall be made with respect to any claim, issue, or matter as to which he or she shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, he or she is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or other adjudicating court shall deem proper.
Section 145(e) of the DGCL provides that expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized by Section 145 of the DGCL. Section 145(e) of the DGCL further provides that such expenses (including attorneys’ fees) incurred by former directors and officers or other employees or agents of the corporation may be so paid upon such terms and conditions as the corporation deems appropriate.
Section 145(g) of the DGCL provides, in general, that a corporation may 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, partnership, joint venture, trust or other 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 have the power to indemnify the person against such liability under Section 145 of the DGCL.
The Registrant’s amended and restated bylaws provide that the Registrant will indemnify, to the fullest extent permitted by the DGCL, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was one of the Registrant’s directors or officers or, while serving as one of the Registrant’s directors or officers, is or was serving at the
Registrant’s request as a director, officer, employee, or agent of another corporation or of another entity, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such person, subject to limited exceptions relating to indemnity in connection with a proceeding (or part thereof) initiated by such person. The Registrant’s amended and restated bylaws further provide for the advancement of expenses to each of its officers and directors.
The Registrant’s amended and restated certificate of incorporation provides that, to the fullest extent permitted by the DGCL, as the same exists or may be amended from time to time, the Registrant’s directors shall not be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director. Under Section 102(b)(7) of the DGCL, the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty can be limited or eliminated except (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) under Section 174 of the DGCL (relating to unlawful payment of dividend or unlawful stock purchase or redemption); or (iv) for any transaction from which the director derived an improper personal benefit.
The Registrant also maintains a general liability insurance policy which covers certain liabilities of its directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers, whether or not the Registrant would have the power to indemnify such person against such liability under the DGCL or the provisions of its amended and restated certificate of incorporation or amended and restated bylaws.
The Registrant has entered into indemnification agreements with each of its directors and certain of its executive officers. These agreements provide that the Registrant will indemnify each of its directors and such officers to the fullest extent permitted by law and by its amended and restated certificate of incorporation or amended and restated bylaws.
Item 7. Exemption from Registration Claimed .
Not applicable.
Item 8. Exhibits .
Unless otherwise indicated below as being incorporated by reference to another filing of the Registrant with the Commission, each of the following exhibits is filed herewith:
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Exhibit No. |
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Description |
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4.1 |
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4.2 |
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5.1 |
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23.1 |
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Consent of Deloitte & Touche LLP, independent registered public accounting firm |
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23.2 |
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Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm |
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23.3 |
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24.1 |
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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 of 1933, as amended (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 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;
(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) of this section 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.
(h) 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 the City of Santa Monica, State of California, on May 8, 2019.
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LEAF GROUP LTD. |
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By: |
/s/ SEAN MORIARTY |
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Sean Moriarty |
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Chief Executive Officer |
POWER OF ATTORNEY AND SIGNATURES
Each person whose signature appears below hereby severally constitutes and appoints Sean Moriarty and Jantoon Reigersman, and each of them singly, as each such person’s true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for such person and in such person’s name, place and stead, in any and all capacities, to sign the Registration Statement on Form S-8 of Leaf Group Ltd., and any or all amendments (including, without limitation, post-effective 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 each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite or necessary to be done in connection therewith 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 any said attorney-in-fact and agent, or any substitute or substitutes of any of them, 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.
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Date |
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/s/ SEAN MORIARTY |
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Chief Executive Officer and Director |
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May 8, 2019 |
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Sean Moriarty |
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( Principal Executive Officer ) |
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/s/ JANTOON REIGERSMAN |
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Chief Financial Officer |
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May 8, 2019 |
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Jantoon Reigersman |
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( Principal Financial Officer) |
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/s/ JANTOON REIGERSMAN |
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Chief Financial Officer |
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May 8, 2019 |
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Jantoon Reigersman |
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( Principal Accounting Officer) |
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/s/ JAMES QUANDT |
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Chairman of the Board |
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May 8, 2019 |
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James Quandt |
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/s/ DEBORAH A. BENTON |
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Director |
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May 8, 2019 |
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Deborah A. Benton |
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/s/ BEVERLY K. CARMICHAEL |
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Director |
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May 8, 2019 |
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Beverly K. Carmichael |
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/s/ JOHN A. HAWKINS |
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Director |
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May 8, 2019 |
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John A. Hawkins |
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/s/ JOHN PLEASANTS |
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Director |
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May 8, 2019 |
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John Pleasants |
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/s/ BRIAN REGAN |
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Director |
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May 8, 2019 |
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Brian Regan |
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/s/ JENNIFER SCHULZ |
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Director |
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May 8, 2019 |
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Jennifer Schulz |
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/s/ MITCHELL STERN |
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Director |
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May 8, 2019 |
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Mitchell Stern |
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/s/ CHARLES C. BAKER |
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Director |
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May 8, 2019 |
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Charles C. Baker |
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EXHIBIT INDEX
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Exhibit No. |
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Description |
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4.1 |
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4.2 |
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5.1 |
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23.1 |
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Consent of Deloitte & Touche LLP, independent registered public accounting firm |
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23.2 |
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Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm |
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23.3 |
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24.1 |
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May 8, 2019
Leaf Group Ltd.
1655 26th Street
Santa Monica, California 90404
Re: Securities Being Registered under Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to you in connection with your filing of a Registration Statement on Form S-8 (the “Registration Statement”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), on or about the date hereof relating to an aggregate of 1,200,000 shares (the “Shares”) of common stock, $0.0001 par value per share, of Leaf Group Ltd., a Delaware corporation (the “Company”), that may be issued pursuant to the Company’s 2010 Incentive Award Plan (the “Plan”).
We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinion set forth below, on certificates of officers of the Company.
The opinion set forth below is limited to the Delaware General Corporation Law.
For purposes of the opinion set forth below, we have assumed that no event occurs that causes the number of authorized shares of common stock available for issuance by the Company to be less than the number of then unissued Shares.
Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the Registration Statement. In giving our consent, we do not 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 thereunder.
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Very truly yours, |
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/s/ Goodwin Procter LLP |
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GOODWIN PROCTER LLP |
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CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 4, 2019, relating to the financial statements of Leaf Group Ltd. and the effectiveness of Leaf Group Ltd.’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of Leaf Group Ltd. for the year ended December 31, 2018.
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/s/ DELOITTE & TOUCHE LLP |
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Los Angeles, CA |
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May 8, 2019 |
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CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Leaf Group Ltd. of our report dated March 1, 2018 relating to the financial statements, which appears in Leaf Group Ltd.’s Annual Report on Form 10-K for the year ended December 31, 2018.
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/s/ PricewaterhouseCoopers LLP |
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Los Angeles, CA |
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May 8, 2019 |
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