As filed with the Securities and Exchange Commission on June 30, 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
SURGALIGN HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 83-2540607 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |
| 520 Lake Cook Road Suite 315 Deerfield, Illinois |
60015 | |
| (Address of Principal Executive Offices) | (Zip Code) | |
SURGALIGN HOLDINGS, INC.
2021 INCENTIVE COMPENSATION PLAN (as amended)
(Full Title of the Plan)
Terry M. Rich
President and Chief Executive Officer
Surgalign Holdings, Inc.
520 Lake Cook Road, Suite 315
Deerfield, Illinois 60015
(Name and address of agent for service)
(224) 303-4651
(Telephone number, including area code, of agent for service)
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 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 filed pursuant to General Instruction E to Form S-8. The contents of the Registration Statement on Form S-8, File No. 333-255882, filed by Surgalign Holdings, Inc, (the “Registrant”) on May 7 2021, are incorporated in this Registration Statement by reference and made a part hereof. In accordance with the instructional note to Part I of Form S-8 as promulgated by the U.S. Securities and Exchange Commission (the “SEC”), the information specified by Part I of Form S-8 has been omitted from this Registration Statement.
The Registrant files this Registration Statement on Form S-8 to register an additional 500,000 shares of Common Stock, $0.001 par value (“Common Stock”), which may be issued pursuant to an amendment to the 2021 Incentive Compensation Plan, which amendment was approved by the shareholders of the Registrant on May 10, 2022, adjusted for a 1-to-30 reverse stock split that took effect on May 17, 2022.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
| ITEM 3. | INCORPORATION OF DOCUMENTS BY REFERENCE. |
The following documents filed with the SEC by the Registrant are incorporated by reference in this Registration Statement:
(a) The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2021, filed with the SEC on March 15, 2022 (including information specifically incorporated by reference into the Registrant’s Form 10-K from the Registrant’s Definitive Proxy Statement for the 2021 Annual Meeting of Stockholders);
(b) The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, filed with the SEC on May 10, 2022;
(c) The Registrant’s Current Reports on Form 8-K filed with the SEC on: January 5, 2022, January 18, 2022, January 27, 2022, February 15, 2022, March 7, 2022, March 15, 2022, March 18, 2022, April 7, 2022, May 10, 2022, May 12, 2022, May 16, 2022, and June 2, 2022;
(d) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year ended December 31, 2021; and
(e) The description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form 8-A, dated August 7, 2000, filed pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as modified by the description of the Registrant’s Common Stock contained in Exhibit 4.7 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed with the SEC on March 15, 2022.
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this Registration Statement or 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 part hereof from the date of filing of such documents.
Any statement contained in any 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 any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed to constitute a part of this Registration Statement, except as so modified or superseded.
| ITEM 3. | INTERESTS OF NAMED EXPERTS AND COUNSEL. |
[Not applicable].
| ITEM 8: | Exhibits |
Pursuant to the requirements of the Securities Act of 1933, the Registrant, Surgalign Holdings, Inc., a corporation organized and existing under the laws of the State of Delaware, 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 San Diego, State of California, on June 29, 2022.
| SURGALIGN HOLDINGS, INC. | ||
| By: | /s/ David Lyle | |
| David Lyle | ||
| Chief Financial Officer | ||
POWER OF ATTORNEY
KNOWN TO ALL PERSONS BY THESE PRESENTS, we, the undersigned officers and directors of Surgalign Holdings, Inc., hereby severally constitute and appoint Terry M. Rich and David Lyle, each acting alone as an attorney-in-fact with the full power of substitution, for and in the name, place and stead of each of us 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, hereby ratifying and confirming all that said attorneys-in-fact, or either of their substitute or substitutes, 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.
| Signatures |
Title |
Date | ||
| /s/ Terry Rich |
President and Chief Executive Officer | June 29, 2022 | ||
| Terry M. Rich | (Principal Executive Officer) and Director | |||
| /s/ David Lyle |
Chief Financial (Principal Financial Officer) | June 29, 2022 | ||
| David Lyle | ||||
| /s/ Chris Thunander |
Vice President and Chief Accounting Officer | June 29, 2022 | ||
| Chris Thunander | (Principal Accounting Officer) | |||
| /s/ Sheryl Conley |
Chairperson | June 29, 2022 | ||
| Sheryl Conley | ||||
| /s/ Thomas A. McEachin |
Director | June 29, 2022 | ||
| Thomas A. McEachin | ||||
| /s/ Mark D. Stolper |
Director | June 29, 2022 | ||
| Mark D. Stolper | ||||
| /s/ Paul G. Thomas |
Director | June 29, 2022 | ||
| Paul G. Thomas | ||||
| /s/ Nicholas J. Valeriani |
Director | June 29, 2022 | ||
| Nicholas J. Valeriani | ||||
EXHIBIT 5.1
Opinion of Sidley Austin LLP regarding legality of the Common Stock
June 29, 2022
Surgalign Holdings, Inc.
520 Lake Cook Road, Suite 315
Deerfield, Illinois 60015
| Re: | Registration Statement on Form S-8 |
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the “Registration Statement”) being filed by Surgalign Holdings, Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration of 500,000 shares of common stock, $0.001 par value per share (the “Registered Shares”), of the Company, which may be issued under the Surgalign Holdings, Inc. 2021 Incentive Compensation Plan (the “Plan”), as amended by that Amendment to Surgalign Holdings, Inc. 2021 Incentive Compensation Plan, dated as of June 29, 2022 (the “Plan Amendment” and, together with the Plan, the “Amended Plan”).
This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
We have examined the Registration Statement, the Company’s Amended and Restated Certificate of Incorporation, as so amended, the Company’s Amended and Restated Bylaws, the Plan, the Plan Amendment, the resolutions adopted by the board of directors of the Company relating to the Registration Statement, the Plan and the Plan Amendment, the proposal adopted by the stockholders of the Company relating to the Plan at the Company’s 2021 Annual Meeting of Stockholders and the proposal adopted by the stockholders of the Company relating to the Plan Amendment at the Company’s 2022 Annual Meeting of Stockholders. We have also examined originals, or copies of originals certified to our satisfaction, of such agreements, documents, certificates and statements of the Company and other corporate documents and instruments, and have examined such questions of law, as we have considered relevant and necessary as a basis for this opinion letter. We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of all persons and the conformity with the original documents of any copies thereof submitted to us for examination. As to facts relevant to the opinions expressed herein, we have relied without independent investigation or verification upon, and assumed the accuracy and completeness of, certificates, letters and oral and written statements and representations of public officials and officers and other representatives of the Company.
Based on the foregoing, we are of the opinion that each Registered Share that is newly issued pursuant to the Amended Plan will be validly issued, fully paid and non-assessable when: (i) the Registration Statement, as finally amended, shall have become effective under the Securities Act; (ii) such Registered Share shall have been duly issued and delivered in accordance with the Amended Plan; and (iii) a certificate representing such Registered Share shall have been duly executed, countersigned and registered and duly delivered to the person entitled thereto against payment of the agreed consideration therefor (in an amount not less than the par value thereof) or, if any Registered Share is to be issued in uncertificated form, the Company’s books shall reflect the issuance of such Registered Share to the person entitled thereto against payment of the agreed consideration therefor (in an amount not less than the par value thereof), all in accordance with the Amended Plan.
This opinion letter is limited to the General Corporation Law of the State of Delaware. We express no opinion as to the laws, rules or regulations of any other jurisdiction, including, without limitation, the federal laws of the United States of America or any state securities or blue sky laws.
We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to all references to our Firm included in or made a part of 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 Securities Act.
| Very truly yours, |
| /s/ Sidley Austin LLP |
| Sidley Austin LLP |
EXHIBIT 23.1
Consent of Grant Thornton LLP (included in Exhibit 5.1)
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our reports dated March 15, 2022, with respect to the consolidated financial statements and internal control over financial reporting included in the Annual Report of Surgalign Holdings, Inc. and subsidiaries on Form 10-K for the year ended December 31, 2021, which are incorporated by reference in this Registration Statement. We consent to the incorporation by reference of the aforementioned reports in this Registration Statement.
/s/ Grant Thornton
Chicago, Illinois
June 29, 2022
EXHIBIT 23.2
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 16, 2021, relating to the financial statements of Surgalign Holdings, Inc. appearing in the Annual Report on Form 10-K of Surgalign Holdings, Inc. for the year ended December 31, 2022.
/s/ DELOITTE & TOUCHE LLP
Chicago, IL
June 29, 2022
EXHIBIT 99.1
AMENDMENT TO SURGALIGN HOLDINGS, INC.
2021 INCENTIVE COMPENSATION PLAN
THIS AMENDMENT TO THE 2021 INCENTIVE COMPENSATION PLAN (this “Amendment”) is adopted effective as of June 29, 2022 (the “Effective Date”), by Surgalign Holdings, Inc., a Delaware corporation (the “Company”), pursuant to Section 9(f) of the Company’s 2021 Incentive Compensation Plan (the “Plan”).
1. BACKGROUND
The Company’s board of directors (the “Board”) and stockholders (the “Stockholders”) previously approved and adopted the Plan.
The Company desires to increase the maximum number of shares reserved and available for issuance under the Plan from 166,6661 plus the shares remaining available for awards under the RTI Surgical Inc. 2018 Incentive Compensation Plan (the “2018 Plan”) to 666,6661, plus the shares remaining available for awards under the 2018 Plan.
The Stockholders previously approved this Amendment. Accordingly, the Board adopts this Amendment as of the Effective Date.
2. TERMS
1. Nature of Amendment and Capitalized Terms. The Plan shall be amended as specifically set forth in this Amendment. The remaining terms of the Plan that are not specifically amended in this Amendment are in full force and effect. Capitalized terms used in this Amendment and not defined will have the meaning set forth in the Plan. The above recitals are incorporated in this Amendment by reference as though fully set forth in this Amendment.
2. Amendment of Section 4(a). Effective as of the Effective Date, Section 4(a) of the Plan is amended to increase the maximum number of shares reserved and available for issuance under the Plan to 666,6661, plus the shares remaining available for awards under the 2018 Plan.
DATE ADOPTED BY THE BOARD OF DIRECTORS: March 8, 2022
DATE APPROVED BY THE STOCKHOLDERS: May 10, 2022
| By: | /s/ David Lyle | |
| Name: | David Lyle | |
| Title: | Chief Financial Officer | |
| 1 | Number of shares adjusted to reflect a 1-to-30 reverse stock split that took effect on May 17, 2022 as approved by the Stockholders of the Company on May 10, 2022. |
EXHIBIT 107
CALCULATION OF FILING FEE TABLES
Form S-8
(Form Type)
Surgalign Holdings, 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 |
Maximum Aggregate Offering Price (3) |
Fee Rate |
Amount of Registration Fee(3)(4) | |||||||
|
Equity |
Common Stock, $0.001 par value per share |
Rule 457(c) and Rule 457(h) |
500,000(4) | $3.93 | $1,965,000.00 | $92.70 per $1,000,000 |
$182.16 | |||||||
|
Total Offering Amounts |
$182.16 | |||||||||||||
|
Total Fee Offsets |
— | |||||||||||||
|
Net Fee Due |
$182.16 | |||||||||||||
| (1) | Represents an additional 500,000 shares of the Registrant’s common stock (“Common Stock”) authorized for issuance under the 2021 Incentive Compensation Plan, as amended (the “Amended Incentive Compensation Plan”), adjusted to reflect a 1-to-30 reverse stock split that took effect on May 17, 2022 and that was approved by the shareholders of the Registrant on May 10, 2022. |
| (2) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers such additional and indeterminate number of shares as may become issuable pursuant to the provisions of the Amended Incentive Compensation Plan relating to adjustments for change resulting from a stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of Common Stock |
| (3) | Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and (h) under the Securities Act. The fee is calculated upon the basis of the average between the high and low sales prices for shares of Common Stock of the Registrant as reported on the NASDAQ Stock Market on June 28, 2022. |
| (4) | Pursuant to General Instruction E to Form S-8, a filing fee is only being paid with respect to the registration of additional securities for the Amended Incentive Compensation Plan. A Registration Statement on Form S-8 was filed on May 7, 2021, covering 166,666 shares of Common Stock reserved for issuance pursuant to the 2021 Incentive Compensation Plan, adjusted for a 1-to-30 reverse stock split that took effect on May 17, 2022 and that was approved by the shareholders of the Registrant on May 10, 2022. |