As filed with the Securities and Exchange Commission on March 16, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
The Honest Company, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 90-0750205 | |||||||
(State or other jurisdiction of incorporation or organization) | (IRS employer identification number) | |||||||
| 12130 Millennium Drive, #500 | ||||||||
| Los Angeles, California | 90094 | |||||||
| (Address of Principal Executive Offices) | (Zip Code) | |||||||
2023 Inducement Plan
(Full titles of the plans)
Carla Vernón
Chief Executive Officer
12130 Millennium Drive, #500
Los Angeles, California 90094
(888) 862-8818
(Name, address, including zip code and telephone number, including area code, of agent for service)
Copies to:
C. Thomas Hopkins Siana Lowrey Cooley LLP 1333 2nd Street, Suite 400 Santa Monica, California 90401 (310) 883-6400 | ||
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 | x | ||||||||
| Non-accelerated filer | ¨ | Smaller reporting company | x | ||||||||
| Emerging growth company | x | ||||||||||
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
The information called for by Part I of Form S-8 is omitted from this Registration Statement in accordance with Rule 428 of the Securities Act of 1933 (the “Securities Act”) and the instructions to Form S-8. In accordance with the rules and regulations of the Securities and Exchange Commission (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.
PART II
Item 3. Incorporation of Documents by Reference.
The following documents filed by The Honest Company, Inc. (the "Registrant") with the Commission are incorporated by reference into this Registration Statement:
(a) The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2022, filed with the Commission on March 16, 2023 (the “2022 10-K”);
(b) The Registrant’s Current Reports on Form 8-K filed with the Commission on January 27, 2023, January 30, 2023
and March 16, 2023 (as to Item 5.02 only);
(c) The description of the Registrant’s common stock contained in a registration statement on Form 8-A/A filed with the Commission on May 3, 2021 (File No. 001-40378) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description, including Exhibit 4.2 of the 2021 10-K; and
(d) All documents 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, and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which de-registers 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, except as to any portion of any future annual, quarterly or current report of the Registrant or document that is not deemed filed under such provisions. Unless expressly incorporated into this Registration Statement, a report (or portion thereof) “furnished” on Form 8-K shall not be incorporated by reference into this Registration Statement. Any statement contained in a document 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 other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any 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.
Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities, including reimbursement for expenses incurred, arising under the Securities Act. The Registrant’s amended and restated certificate of incorporation provides for indemnification of the Registrant’s directors to the maximum extent permitted by the Delaware General Corporation Law, and the Registrant’s amended and restated bylaws provide for indemnification of the Registrant’s directors, officers, employees and other agents to the maximum extent permitted by law.
The Registrant has entered into indemnification agreements with the Registrant’s directors and officers, whereby the Registrant has agreed to indemnify the Registrant’s directors and officers to the fullest extent permitted by law, including advancement of expenses incurred in legal proceedings to which the director or officer was, or is threatened to be made, a party by reason of the fact that such director or officer is or was a director, officer, employee or agent of the Registrant, provided that such director or officer acted in good faith and in a manner that the director or officer reasonably believed to be in, or not opposed to, the best interest of the
Registrant. At present, there is no pending litigation or proceeding involving a director or officer of the Registrant regarding which indemnification is sought, nor is the Registrant aware of any threatened litigation that may result in claims for indemnification.
The Registrant maintains insurance policies that indemnify the Registrant’s directors and officers against various liabilities arising under the Securities Act and the Exchange Act that might be incurred by any director or officer in his capacity as such.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits to this Registration Statement are listed below:
Exhibit Number | Exhibit Description | |||||||
Amended and Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K (File No. 001-40378), filed with the Commission on May 11, 2021). | ||||||||
Amended and Restated Bylaws (incorporated herein by reference to Exhibit 3.2 to the Registrant’s Annual Report on Form 10-K (File No. 001-40378), filed with the Commission on March 16, 2023). | ||||||||
5.1* | Opinion of Cooley LLP. | |||||||
23.1* | Consent of Independent Registered Public Accounting Firm. | |||||||
23.2* | Consent of Cooley LLP (included in Exhibit 5.1). | |||||||
24.1* | Power of Attorney (included on the signature page of this registration statement). | |||||||
2023 Inducement Plan (incorporated herein by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K (File No. 001-40378), filed with the Commission on March 16, 2023). | ||||||||
Form of Global RSU Award Grant Notice and Global RSU Award Agreement under the 2023 Inducement Plan (incorporated herein by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K (File No. 001-40378), filed with the Commission on March 16, 2023). | ||||||||
107* | Filing Fee Table | |||||||
______________
* Filed herewith
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;
(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 a 20% 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 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) 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 herein, 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.
(4) That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
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 herein, 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 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, as amended, 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 Los Angeles, State of California on March 16, 2023.
| The Honest Company, Inc. | ||||||||
| By: | /s/ Carla Vernón | |||||||
Carla Vernón | ||||||||
| Chief Executive Officer | ||||||||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Carla Vernón, Kelly Kennedy, and Brendan Sheehey and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and 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, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, 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 any of them, or their or his or her substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||||||||||||
/s/ Carla Vernón | Chief Executive Officer and Director | March 16, 2023 | ||||||||||||
Carla Vernón | (Principal Executive Officer) | |||||||||||||
| /s/ Jessica Warren | Chief Creative Officer and Director | March 16, 2023 | ||||||||||||
| Jessica Warren | ||||||||||||||
| /s/ Kelly J. Kennedy | Executive Vice President, Chief Financial Officer | March 16, 2023 | ||||||||||||
| Kelly J. Kennedy | (Principal Financial and Accounting Officer) | |||||||||||||
| /s/ Katie Bayne | Director | March 16, 2023 | ||||||||||||
| Katie Bayne | ||||||||||||||
| /s/ Julia M. Brown | Director | March 16, 2023 | ||||||||||||
| Julia M. Brown | ||||||||||||||
| /s/ Susan Gentile | Director | March 16, 2023 | ||||||||||||
| Susan Gentile | ||||||||||||||
| /s/ John R. Hartung | Director | March 16, 2023 | ||||||||||||
| John R. Hartung | ||||||||||||||
| /s/ Eric Liaw | Director | March 16, 2023 | ||||||||||||
| Eric Liaw | ||||||||||||||
| /s/ Avik Pramanik | Director | March 16, 2023 | ||||||||||||
| Avik Pramanik | ||||||||||||||
| /s/ Nikolaos Vlahos | Director | March 16, 2023 | ||||||||||||
| Nikolaos Vlahos | ||||||||||||||
| /s/ James D. White | Director | March 16, 2023 | ||||||||||||
| James D. White | ||||||||||||||
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
The Honest Company, 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 | Common Stock | Other(2) | 4,000,000(3) | $2.75(2) | $11,000,000 | .00011020 | $1,213 | ||||||||||||||||
| Total Offering Amounts | – | $11,000,000 | – | $1,213 | |||||||||||||||||||
| Total Fees Previously Paid | – | – | – | – | |||||||||||||||||||
| Total Fee Offsets | – | – | – | – | |||||||||||||||||||
| Net Fee Due | – | – | – | $1,213 | |||||||||||||||||||
(1) Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Registrant’s Common Stock, $0.0001 par value per share (the “Common Stock”) that become issuable under The Honest Company, Inc. 2023 Inducement Plan (the “Inducement 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 Registrant’s Common Stock.
(2) Estimated in accordance with Rules 457(c) and (h) solely for the purpose of calculating the registration fee on the basis of $2.75 per share, the average of the high and low prices of the Registrant’s Common Stock on March 15, 2023 as reported on the Nasdaq Global Select Market.
(3) Represents 4,000,000 shares of Common Stock reserved for issuance under the Inducement Plan.
Exhibit 5.1 | ||
Siana E. Lowrey +1 415 693 2150 slowrey@cooley.com | |||||
March 16, 2023
The Honest Company, Inc.
12130 Millennium Drive, #500
Los Angeles, CA 90094
Re: The Honest Company, Inc. – Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to The Honest Company, Inc., a Delaware corporation (the Company”), in connection with the filing of a registration statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”), covering the offering of up to 4,000,000 shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share, issuable pursuant to the Company’s 2023 Inducement Plan (the “Plan”).
In connection with this opinion, we have examined and relied upon (a) the Registration Statement and related prospectus, (b) the Company’s certificate of incorporation and bylaws, each as currently in effect, (c) the Plan and (d) originals or copies certified to our satisfaction of such records, documents, certificates, memoranda, opinions and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the accuracy, completeness and authenticity of certificates of public officials and the due authorization, execution and delivery of all documents by all persons other than the Company where authorization, execution and delivery are prerequisites to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified such matters.
Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plan, the Registration Statement and the related prospectus, will be validly issued, fully paid and non-assessable (except as to shares issued pursuant to deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).
Cooley LLP 3 Embarcadero Center, 20th Floor, San Francisco, CA 94111 t: (415) 693 2000 f: (415) 693 2222 cooley.com | ||
| |||||
| The Honest Company, Inc. Page Two | |||||
We consent to the filing of 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 Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder.
Sincerely,
Cooley LLP
By: /s/ Siana E. Lowrey
Siana E. Lowrey
Cooley LLP 3 Embarcadero Center, 20th Floor, San Francisco, CA 94111 t: (415) 693 2000 f: (415) 693 2222 cooley.com | ||
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 The Honest Company, Inc. of our report dated March 16, 2023 relating to the financial statements, which appears in The Honest Company, Inc.'s Annual Report on Form 10-K for the year ended December 31, 2022.
/s/ PricewaterhouseCoopers LLP
Los Angeles, California
March 16, 2023