As
filed with the Securities and Exchange Commission on December 28, 2021
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER
THE SECURITIES ACT OF 1933
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1847
GOEDEKER INC.
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(Exact
name of registrant as specified in its charter)
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Delaware
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83-3713938
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(State
or other jurisdiction of
incorporation or organization)
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(I.R.S.
Employer
Identification No.)
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3817
Millstone Parkway, St. Charles, MO
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63301
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(Address
of Principal Executive Offices)
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(Zip
Code)
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1847
GOEDEKER INC. 2020 EQUITY INCENTIVE PLAN
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(Full
title of the plan)
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Albert
Fouerti
Chief Executive Officer
3817
Millstone Parkway
St.
Charles, MO 633301
(888)
768-1710
Copies
to:
Louis
A. Bevilacqua, Esq.
BEVILACQUA
PLLC
1050
Connecticut Ave., N.W., Suite 500
Washington,
DC 20036
(202)
869-0888
(Name,
address and 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.
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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 ☒
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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. ☐
CALCULATION
OF REGISTRATION FEE
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Title of securities to be registered
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Amount to be registered(1)
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Proposed maximum offering price per share(3)
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Proposed maximum aggregate offering price
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Amount of registration fee
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Common Stock, par value $0.0001 per share(2)
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10,000,000
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$
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2.62
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$
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26,200,000
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$
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2,428.74
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(1)
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Pursuant
to Rule 416(a) of the Securities Act of 1933, as amended, this Registration Statement covers
any additional shares of the Registrant’s common stock that become issuable under the
Registrant’s 2020 Equity Incentive Plan, as amended (the “Plan”), by reason
of any stock dividend, stock split, recapitalization or other similar transaction effected
without the Registrant’s receipt of consideration that results in an increase in the
number of the outstanding shares of common stock.
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(2)
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This
Form S-8 registers 10,000,000 additional shares of the Registrant’s common stock for
issuance under the Plan.
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(3)
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Estimated
solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and (h)
under the Securities Act of 1933, as amended, based upon the average of the high and low
prices of the registrant’s common stock reported on NYSE American on December 23, 2021.
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EXPLANATORY
NOTE
1847
Goedeker Inc. (the “Registrant”) is filing this Registration Statement with the Securities and Exchange Commission (the “Commission”)
to register 10,000,000 additional shares of its common
stock, par value $0.0001 per share, under the Registrant’s 2020 Equity Incentive Plan, as amended (the “Plan”). In
accordance with the instructional note to Part I of Form S-8 as promulgated by the Commission, the information specified by Part I of
the Form S-8 has been omitted from this Registration Statement.
Pursuant
to General Instruction E of Form S-8, the contents of (i) the Registration Statement on Form S-8 filed with the Commission
on August 3, 2020 (File No. 333-240307) and (ii) the Registration Statement on Form S-8 filed with the Commission on May 24,
2021 (File No. 333-256402) are hereby incorporated by reference in this Registration Statement to the extent not replaced hereby.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents filed by the Registrant with the Commission are incorporated by reference into this Registration Statement:
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(1)
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The
Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020 filed on March 29, 2021;
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(2)
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The
Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2021 filed on May 12, 2021;
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(3)
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The
Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2021 filed on August 12, 2021;
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(4)
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The
Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2021 filed on November 15, 2021;
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(5)
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The
Registrant’s Current Reports on Form 8-K filed on January 20, 2021, March 25, 2021, March 29, 2021, April 5, 2021, April 6, 2021, June 3, 2021, June 9, 2021, July 20, 2021, August 13, 2021, August 27, 2021, September 3, 2021, October 21, 2021, November 5, 2021, November 24, 2021 and December 22, 2021; and
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(6)
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The
description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form 8-A (File No.
001-39418) filed on May 26, 2021 pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), including any amendment or report filed for the purpose of updating such description.
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All
other reports and documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
(other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such
items) on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all securities offered 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 of this Registration Statement from the date of the filing of such
reports and documents. 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 that 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
8. Exhibits.
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 St. Charles, State of Missouri, on December 28, 2021.
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1847 GOEDEKER INC.
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By:
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/s/
Albert Fouerti
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Albert
Fouerti
Chief
Executive Officer
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POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints each of Albert Fouerti and Maria Johnson as his or her true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution, for him or her and his or her name, place and stead,
in any and all capacities, to sign any or all amendments (including 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 said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary
to be done in and about the foregoing, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or their 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.
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SIGNATURE
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TITLE
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DATE
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/s/ Albert Fouerti
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Chief Executive Officer and
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December 28, 2021
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Albert Fouerti
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Director (principal executive officer)
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/s/ Maria Johnson
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Chief Financial Officer
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December 28, 2021
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Maria Johnson
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(principal financial and accounting officer)
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/s/ Ellery W. Roberts
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Chairman of the Board
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December 28, 2021
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Ellery W. Roberts
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/s/ Ellette A. Anderson
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Director
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December 28, 2021
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Ellette A. Anderson
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/s/ Clark R. Crosnoe
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Director
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December 28, 2021
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Clark R. Crosnoe
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/s/ Glyn C. Milburn
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Director
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December 28, 2021
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Glyn C. Milburn
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/s/ G. Alan Shaw
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Director
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December 28, 2021
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G. Alan Shaw
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/s/ Alan P. Shor
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Director
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December 28, 2021
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Alan P. Shor
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/s/ Edward J. Tobin
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Director
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December 28, 2021
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Edward J. Tobin
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II-2
Exhibit 4.2
CERTIFICATE OF AMEDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
1847 GOEDEKER INC.
(Pursuant to Section 242 of the
General Corporation Law of the State of Delaware)
1847 Goedeker Inc. (the “Corporation”),
a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, does hereby certify:
FIRST: That at a meeting of
the Board of Directors of the Corporation resolutions were duly adopted setting forth a proposed amendment of the Amended and Restated
Certificate of Incorporation of the Corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of
the Corporation for consideration thereof. The resolutions setting forth the proposed amendment is as follows:
RESOLVED, that the
Amended and Restated Certificate of Incorporation of the Corporation be amended by changing the first sentence of Article IV that, as
amended, said sentence shall be and read as follows:
“The total
number of shares of capital stock which the Corporation shall have authority to issue is two hundred fifty million (250,000,000) shares
of common stock, $0.0001 par value per share (the “Common Stock”), and twenty million (20,000,000) shares of
preferred stock, $0.0001 par value per share (the “Preferred Stock”).”
SECOND: That thereafter, pursuant
to resolution of its Board of Directors, a meeting of the stockholders of the Corporation was duly called and held upon notice in accordance
with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by
statute were voted in favor of the amendment.
THIRD: That said amendment
was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, 1847 Goedeker
Inc. has caused this Certificate of Amendment to be signed this 21st day of December, 2021.
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1847 GOEDEKER INC.
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By:
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/s/ Albert Fouerti
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Name: Albert Fouerti
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Title: Chief Executive Officer
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Exhibit 5.1
E: lou@bevilacquapllc.com
T: 202.869.0888
W: bevilacquapllc.com
December 28, 2021
1847 Goedeker Inc.
3817 Millstone Parkway
St. Charles, MO 633301
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Re:
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Registration Statement on Form S-8
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Ladies and Gentlemen:
We have acted as counsel to 1847 Goedeker Inc.,
a Delaware corporation (the “Company”), in connection with a Registration Statement on Form S-8 (the “Registration
Statement”) filed by the Company with the Securities and Exchange under the Securities Act of 1933, as amended (the “Securities
Act”), relating to 10,000,000 additional shares (the “Shares”) of the common stock of the Company, par value
$0.0001 per share (the “Common Stock”), that are issuable by the Company pursuant to the Company’s 2020 Equity
Incentive Plan, as amended (the “Plan”). This opinion letter is furnished to you at your request and in connection
with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In connection with the furnishing of this opinion,
we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents:
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(a)
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the Registration Statement;
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(c)
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the Amended and Restated Certificate of Incorporation of the Company, as amended;
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(d)
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the Bylaws of the Company, as amended; and
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(e)
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resolutions of the Company’s Board of Directors pertaining to the Registration Statement, the Plan,
the Shares and related matters.
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We also have examined originals or copies, certified
or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates of public officials, certificates
of officers or other representatives of the Company and others, and such other documents, certificates, and records as we have deemed
necessary or appropriate as a basis for the opinions set forth herein.
In rendering the opinion expressed herein, we
have, without independent inquiry or investigation, assumed (i) in connection with each issuance of any Shares, the Company will duly
execute and deliver a stock certificate evidencing the Shares or, with respect to any Shares issued on an uncertificated basis, the Company
will comply with all applicable notice requirements regarding uncertificated shares provided in the General Corporation Law of the State
of Delaware; (ii) all representations, warranties, and other statements as to factual matters that are contained in the documents that
we reviewed in connection with this opinion letter (including, without limitation, the Registration Statement and the Plan) are accurate
and complete, and all corporate records furnished to us by the Company are accurate and complete; (iii) each award of Shares under the
Plan or of a right to receive Shares under the Plan will be approved by the Company’s Board of Directors or by a duly authorized
committee of the Board of Directors; (iv) the Company will issue the Shares in accordance with the terms of the Registration Statement
and the Plan and pursuant to the grant notices and agreements that accompany the Plan; (v) the Company will at all times reserve a sufficient
number of shares of unissued Common Stock as is necessary to provide for the issuance of the Shares pursuant to the Plan; and (vi) with
respect to documents that we reviewed in connection with this opinion letter, all documents submitted to us as originals are authentic
and complete; all documents submitted to us as certified, electronic, facsimile, or photostatic copies conform to the originals of such
documents, and such original documents are authentic and complete; the signatures on all documents are genuine; and all natural persons
who have executed any of the documents have the legal capacity to do so.
1050 Connecticut Ave., NW, Suite 500
Washington, DC 20036
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PG. 2
December 28, 2021
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Based upon our examination mentioned above, subject
to the assumptions stated and relying on statements of fact contained in the documents that we have examined, we are of the opinion that,
when issued, delivered and, if applicable, paid for in accordance with the terms of the Registration Statement and the Plan and pursuant
to the grant notices and agreements that accompany the Plan, the Shares will be validly issued, fully paid, and nonassessable.
Notwithstanding anything in this letter which
might be construed to the contrary, our opinion expressed herein is limited to the General Corporation Law of the State of Delaware. We
express no opinion with respect to the applicability to, or the effect on, the subject transaction of the laws of any other jurisdiction
or as to any matters of municipal law or the laws of any local agencies. The opinion expressed herein is based upon the General Corporation
Law of the State of Delaware in effect on the date hereof and as of the effective date of the Registration Statement, and we assume no
obligation to revise or supplement this opinion after the effective date of the Registration Statement should such law be changed by legislative
action, judicial decision, or otherwise. Except as expressly set forth in our opinion above: (i) we express no opinion as to whether the
laws of any other jurisdiction are applicable to the subject matter hereof, and (ii) we express no opinion as to compliance with any other
federal or state law, rule or regulation relating to securities, or to the sale or issuance thereof.
We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement. In giving this consent, we do not hereby 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 promulgated thereunder.
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Very truly yours,
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/s/ BEVILACQUA PLLC
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Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We hereby consent to the incorporation by reference
in this Registration Statement on Form S-8 of 1847 Goedeker Inc. of our report dated March 29, 2021 relating to the consolidated financial
statements of 1847 Goedeker Inc., which appears in 1847 Goedeker Inc.’s Annual Report on Form 10-K for the year ended December 31,
2020.
/s/ Friedman LLP
Marlton, NJ
December 28, 2021
Exhibit 99.3
AMENDMENT NO. 2
TO
1847 GOEDEKER INC.
2020 EQUITY INCENTIVE PLAN
The 1847 Goedeker Inc. 2020 Equity Incentive Plan,
as amended (the “Plan”), is hereby amended as follows:
Section 4 of the Plan is hereby amended in its entirety to read as
follows:
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“4.
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Shares Subject to the Plan.
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4.1. Subject
to adjustment in accordance with Section 11, a total of 11,000,000 shares of Common Stock shall be available for the
grant of Awards under the Plan. Shares of Common Stock granted in connection with all Awards under the Plan shall be counted against
this limit as one (1) share of Common Stock for every one (1) share of Common Stock granted in connection with such Award. During
the terms of the Awards, the Company shall keep available at all times the number of shares of Common Stock required to satisfy such
Awards.
4.2. Shares of
Common Stock available for distribution under the Plan may consist, in whole or in part, of authorized and unissued shares, treasury
shares or shares reacquired by the Company in any manner.
4.3. Any
shares of Common Stock subject to an Award that is canceled, forfeited or expires prior to exercise or realization, either in full
or in part, shall again become available for issuance under the Plan. Any shares of Common Stock that again become available for
future grants pursuant to this Section 4.3 shall be added back as one (1) share. Notwithstanding anything to the
contrary contained herein: shares subject to an Award under the Plan shall not again be made available for issuance or delivery
under the Plan if such shares are (a) shares tendered in payment of an Option, (b) shares delivered or withheld by the Company to
satisfy any tax withholding obligation, or (c) shares covered by a stock-settled Stock Appreciation Right or other Awards that were
not issued upon the settlement of the Award.”
Except as herein amended, the provisions of the Plan shall remain in
full force and effect.
Effective as of December 22,
2021