As filed with the Securities and Exchange Commission on October 27, 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
Sportsman’s Warehouse Holdings, Inc.
(Exact name of registrant as specified in its charter)
Delaware |
39-1975614 |
(State or other jurisdiction of |
(I.R.S. Employer |
incorporation or organization) |
Identification No.) |
Sportsman’s Warehouse Holdings, Inc.
1475 West 9000 South, Suite A, West Jordan, Utah 84088
(Address of Principal Executive Offices) (Zip Code)
Sportsman’s Warehouse Holdings, Inc. Inducement Plan
(Full title of the plan)
Jeff White
Chief Financial Officer and Secretary
1475 West 9000 South, Suite A, West Jordan, Utah 84088
(801) 566-6681
(Name and address of agent for service) (Telephone number, including area code, of agent for service)
Copies to:
John-Paul Motley
Logan Tiari
Cooley LLP
355 South Grand Avenue, Suite 900
Los Angeles, California 90071
(213) 561-3250
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 |
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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. ☒
EXPLANATORY NOTE
This Registration Statement on Form S-8 (the “Registration Statement”) is being filed for the purpose of registering 1,000,000 shares of common stock, par value $0.01 per share (the “Common Stock”), of Sportsman’s Warehouse Holdings, Inc. (the “Registrant”), reserved and available for issuance under the Sportsman’s Warehouse Holdings, Inc. Inducement Plan (the “Inducement Plan”).
On September 21, 2023, the Registrant’s board of directors adopted the Inducement Plan, pursuant to which the Registrant reserved 1,000,000 shares of Common Stock, to be used exclusively for grants of equity-based awards to individuals who were not previously employees or directors of the Registrant, as an inducement material to the individual’s entry into employment with the Registrant within the meaning of Nasdaq Listing Rule 5635(c)(4).
The Inducement Plan provides for the grant of equity-based awards in the form of options, stock appreciation rights, restricted stock, stock bonuses, stock units, restricted stock units, performance stock, deferred shares, phantom stock, dividend equivalent rights and other cash or share-based awards. The Inducement Plan was adopted by the Registrant’s board of directors without stockholder approval pursuant to Nasdaq Listing Rule 5635(c)(4).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed by the Registrant with the Securities and Exchange Commission (the “Commission”):
In addition, all documents subsequently filed by the Registrant with the Commission 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 which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. Notwithstanding the foregoing, unless specifically stated to the contrary, none of the information that the Registrant discloses under Items 2.02 or 7.01 of any Current Report on Form 8-K (and corresponding information furnished under Item 9.01 or included as an exhibit thereto or incorporated therein by reference) that it may from time to time furnish to the Commission will be incorporated by reference into, or otherwise included in, this Registration Statement.
Any statement, including financial statements, 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 therein 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 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.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 102(b)(7) of the General Corporation Law of the State of Delaware (the “DGCL”) permits a corporation in its certificate of incorporation or an amendment to eliminate or limit the personal liability of its directors or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his or her duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of law or obtained an improper personal benefit. The Registrant’s amended and restated certificate of incorporation provides for this limitation of liability.
Section 145 of the DGCL provides that a corporation has the power to indemnify a director, officer, employee or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with 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, to which he or she is a party by reason of such position, if such person 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 further provides that in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any claim, issue or matter as to which such person 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, such person is fairly and reasonably entitled to indemnify for such expenses which the Court of Chancery or such other court shall deem proper.
Section 145(g) of the DGCL further authorizes a corporation to purchase and maintain insurance on behalf of any indemnified person against any liability asserted against and incurred by such person in any indemnified capacity, or arising out of such person’s status as such, regardless of whether the corporation would otherwise have the power to indemnify under Delaware law. The Registrant’s amended and restated certificate of incorporation allows and the Registrant’s third amended and restated bylaws require that the Registrant indemnify our directors and officers to the fullest extent permitted by the DGCL and that the Registrant pay expenses incurred in defending any such proceeding in advance of its final disposition upon delivery of an undertaking, by or on behalf of an indemnified person, to repay all amounts so advanced if it should be ultimately determined that such person is not entitled to be indemnified under the Registrant’s third amended and restated bylaws or otherwise.
The Registrant has entered into indemnification agreements with its directors and executive officers. In general, these agreements provide that the Registrant will indemnify the director or executive officer to the fullest extent permitted by law for claims arising in his or her capacity as a director or officer or in connection with his or her service at the Registrant’s request for another corporation or entity.
The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, provision of the Registrant’s amended and restated certificate of incorporation, third amended and restated bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
The Registrant maintains standard policies of insurance that provide coverage (1) to the Registrant’s directors and officers against loss arising from claims made by reason of breach of duty or other wrongful act and (2) to the Registrant with respect to indemnification payments that the Registrant may make to such directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit |
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Number |
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Description of Exhibit |
4.1 |
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4.2 |
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4.3 |
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4.4 |
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5.1* |
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23.1* |
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Consent of Grant Thornton LLP, independent registered public accounting firm. |
23.2* |
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24.1* |
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Power of Attorney (included on the signature page). |
Filing Fees* |
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Filing Fee Table. |
__________________________________
*Filed herewith.
Item 9. Undertakings.
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 this Registration Statement.
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 West Jordan, State of Utah, on October 27, 2023.
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SPORTSMAN’S WAREHOUSE HOLDINGS, INC.
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By: |
/s/ Joseph P. Schneider |
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Joseph P. Schneider |
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Interim President and Interim Chief Executive Officer |
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Joseph P. Schneider and Jeff White, and each of them, acting individually and without the other, as his or her true and lawful attorneys-in-fact and agents, 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, exhibits thereto and other documents in connection therewith) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the 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 and about the premises, 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 either of them individually, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature |
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Title |
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Date |
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/s/ Joseph P. Schneider |
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Interim President, Interim Chief Executive Officer, Chairman of the Board and Director |
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October 27, 2023 |
Joseph P. Schneider |
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(Principal Executive Officer) |
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/s/ Jeff White |
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Chief Financial Officer |
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October 27, 2023 |
Jeff White |
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(Principal Financial and Accounting Officer) |
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/s/ Martha Bejar |
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Director |
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October 27, 2023 |
Martha Bejar |
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/s/ Erica Fortune |
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Director |
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October 27, 2023 |
Erica Fortune |
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/s/ Gregory P. Hickey |
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Director |
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October 27, 2023 |
Gregory P. Hickey |
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/s/ Richard McBee |
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Director |
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October 27, 2023 |
Richard McBee |
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/s/ Steven W. Sansom |
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Director |
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October 27, 2023 |
Steven W. Sansom |
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/s/ Nancy A. Walsh |
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Director |
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October 27, 2023 |
Nancy A. Walsh |
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/s/ Philip C. Williamson |
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Director |
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October 27, 2023 |
Philip C. Williamson |
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Exhibit 5.1
John-Paul Motley
+1 213 561 3204
jpmotley@cooley.com
October 27, 2023
Sportsman’s Warehouse Holdings, Inc.
1475 West 9000 South, Suite A
West Jordan, Utah 84088
Re: Sportsman’s Warehouse Holdings, Inc. — Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Sportsman’s Warehouse Holdings, Inc., a Delaware corporation (the “Company”), in connection with the filing of a Registration Statement on Form S‑8 (the “Registration Statement”) with the U.S. Securities and Exchange Commission (the “Commission”) covering the offering of up to 1,000,000 shares of the Company’s common stock, $0.01 par value per share (the “Shares”), issuable pursuant to the Company’s Inducement Plan (the “Inducement Plan”).
In connection with this opinion, we have examined and relied upon (a) the Registration Statement and the related prospectus, (b) the Company’s certificate of incorporation and bylaws, each as currently in effect, (c) the Inducement Plan and (d) such other records, documents, certificates, memoranda 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 by 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 Inducement Plan, the Registration Statement and the related prospectus, will be validly issued, fully paid and nonassessable (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).
This opinion is limited to the matters expressly set forth in this letter, and no opinion should be implied, or may be inferred, beyond the matters expressly stated. This opinion speaks only as to law and facts in effect or existing as of the date hereof and we undertake no obligation or responsibility to update or supplement this letter to reflect any facts or circumstances that may hereafter come to our attention or any changes in law that may hereafter occur.
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/ John-Paul Motley
John-Paul Motley
Cooley LLP 355 S. Grand Ave Suite 900, Los Angeles, CA 90071
t: (213) 561-3250 f: (213) 561-3244 cooley.com
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our reports dated April 13, 2023 with respect to the consolidated financial statements and internal control over financial reporting of Sportsman’s Warehouse Holdings, Inc. included in the Annual Report on Form 10-K for the year ended January 28, 2023, 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 LLP
Salt Lake City, Utah
October 27, 2023
GT.COM
Exhibit Filing Fees
Calculation of Filing Fee Table
Form S-8
(Form Type)
Sportsman’s Warehouse Holdings, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
Security Type |
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Security Class Title |
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Fee Calculation Rule |
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Amount Registered(1) |
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Proposed Maximum Offering Price Per Unit(2) |
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Maximum Aggregate Offering Price |
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Fee Rate |
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Amount of Registration Fee |
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Equity |
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Inducement Plan Common Stock, par value $0.01 per share |
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Other |
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1,000,000(3) |
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$ |
4.90 |
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$ |
4,900,000 |
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0.0001476 |
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$ |
723.24 |
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Total Offering Amounts |
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$ |
4,900,000 |
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$ |
723.24 |
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Total Fee Offsets |
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$ |
— |
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Net Fee Due |
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$ |
723.24 |
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of common stock, par value $0.01 per share (“Common Stock”), of Sportsman’s Warehouse Holdings, Inc. (the “Registrant”) that become issuable under the Registrant’s Inducement Plan (the “Inducement Plan”) by reason of any stock dividend, stock split, recapitalization or other similar transaction.
(2) This estimate is made pursuant to Rule 457(h)(1) and Rule 457(c) of the Securities Act solely for purposes of calculating the registration fee. The price per share and aggregate offering price are based upon the average of the high and low prices of the Common Stock on October 23, 2023, as reported on the Nasdaq Global Select Market.
(3) Represents shares of Common Stock reserved for future grant under the Inducement Plan as inducement grants under Nasdaq Listing Rule 5635(c)(4).