As filed with the Securities and Exchange Commission on May 5, 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
Vital Farms, Inc.
(Exact name of registrant as specified in its charter)
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Delaware |
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27-0496985 |
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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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3601 South Congress Avenue Suite C100 Austin, Texas |
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78704 |
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(Address of Principal Executive Offices) |
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(Zip Code) |
Vital Farms, Inc. 2020 Equity Incentive Plan
Vital Farms, Inc. 2020 Employee Stock Purchase Plan
(Full titles of the plans)
Russell Diez-Canseco
President and Chief Executive Officer
Vital Farms, Inc.
3601 South Congress Avenue
Suite C100
Austin, Texas 78704
(877) 455-3063
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
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Jaime L. Chase Katherine Denby Cooley LLP 1299 Pennsylvania Avenue NW, Suite 700 Washington, DC 20004 202-842-7800 |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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. ☐
EXPLANATORY NOTE
Pursuant to General Instruction E of Form S-8, the Registrant is filing this Registration Statement with the Securities and Exchange Commission (the “Commission”) to register an additional 1,619,758 shares of common stock under the Vital Farms, Inc. 2020 Equity Incentive Plan and an additional 404,939 shares of common stock under the Vital Farms, Inc. 2020 Employee Stock Purchase Plan, pursuant to the provisions of each plan which provide for annual automatic increases in the number of shares of common stock reserved for issuance under each respective 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.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. |
Incorporation of Documents by Reference. |
Vital Farms, Inc. (the “Registrant”) hereby incorporates by reference into this Registration Statement the following documents filed by it with the Commission:
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(a) |
the contents of the Registrant’s Registration Statements on Form S-8, previously filed with the Commission on July 31, 2020 (File No. 333-240258) and March 24, 2021 (File No. 333-254643); |
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(b) |
the Registrant’s Annual Report on Form 10-K (File No. 001-39411) for the fiscal year ended December 26, 2021, filed with the Commission on March 10, 2022 (the “Annual Report”); |
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(c) |
the Registrant’s Current Reports on Form 8-K (File No. 001-39411) filed with the Commission on January 28, 2022 and April 6, 2022; and |
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(d) |
the description of the Registrant’s common stock set forth in the Registrant’s registration statement on Form 8-A (File No. 001-39411), filed with the Commission on July 28, 2020, under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendments or reports filed for the purpose of updating this description, including Exhibit 4.3 to the Annual Report. |
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 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 hereby have been sold or which deregisters all securities then 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 such 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 herein or in any 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 constitute a part of this Registration Statement, except as so modified or superseded.
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Item 8. |
Exhibits. |
The exhibits to this Registration Statement are listed below:
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Exhibit |
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Exhibit Description |
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4.1 |
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4.2 |
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4.3 |
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4.4 |
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4.5 |
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4.6 |
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4.7 |
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4.8 |
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5.1* |
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23.1* |
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23.2* |
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24.1* |
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Power of Attorney (included on the signature page of this Form S-8). |
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107* |
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* Filed herewith |
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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 Austin, State of Texas on May 5, 2022.
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Vital Farms, Inc. |
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By: |
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/s/ Russell Diez-Canseco |
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Russell Diez Canseco |
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President and Chief Executive Officer |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Russell Diez-Canseco and Bo Meissner, 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, this Registration Statement on Form S-8 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/ Russell Diez-Canseco Russell Diez-Canseco |
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President, Chief Executive Officer and Director (Principal Executive Officer) |
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May 5, 2022 |
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/s/ Bo Meissner Bo Meissner |
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Chief Financial Officer (Principal Financial Officer) |
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May 5, 2022 |
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/s/ Jeffery S. Dawson Jeffery S. Dawson |
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Chief Accounting Officer (Principal Accounting Officer) |
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May 5, 2022 |
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/s/ Matthew O’Hayer Matthew O’Hayer |
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Executive Chairman and Director |
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May 5, 2022 |
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/s/ Kofi Amoo-Gottfried Kofi Amoo-Gottfried |
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Director |
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May 5, 2022 |
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/s/ Brent Drever Brent Drever |
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Director |
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May 5, 2022 |
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/s/ Glenda Flanagan Glenda Flanagan |
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Director |
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May 5, 2022 |
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/s/ Kelly Kennedy Kelly Kennedy |
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Director |
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May 5, 2022 |
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/s/ Karl Khoury Karl Khoury |
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Director |
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May 5, 2022 |
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/s/ Denny Marie Post Denny Marie Post |
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Director |
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May 5, 2022 |
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/s/ Gisel Ruiz Gisel Ruiz |
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Director |
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May 5, 2022 |
Exhibit 5.1
Jaime L. Chase
+1 202 728 7096
jchase@cooley.com
May 5, 2022
Vital Farms, Inc.
3601 South Congress Avenue, Suite C100 Austin, Texas 78704
Ladies and Gentlemen:
We have acted as counsel to Vital Farms, 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 covering the offering of up to 2,024,697 shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), consisting of (a) 1,619,758 shares of Common Stock issuable pursuant to the Company’s 2020 Equity Incentive Plan (the “2020 EIP”) and (b) 404,939 shares of Common Stock, issuable pursuant to the Company’s 2020 Employee Stock Purchase Plan (together with the 2020 EIP, the “Plans”).
In connection with this opinion, we have examined and relied upon (a) the Registration Statement and related prospectuses, (b) the Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, each as currently in effect, (c) the Plans and (d) originals or copies certified to our satisfaction of such 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 by all persons other than by the Company of all documents 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 Plans, the Registration Statement and related prospectuses, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).
Cooley LLP 1299 Pennsylvania Avenue, NW, Suite 700 Washington, DC 20004-2400 t: (202) 842-7800 f: (202) 842-7899 cooley.com
Vital Farms, Inc. May 5, 2022
Page Two
We consent to the filing of this opinion as an exhibit to the Registration Statement. Sincerely,
Cooley LLP
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By: /s/ Jaime L. Chase |
Jaime L. Chase |
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Cooley LLP 1299 Pennsylvania Avenue, NW, Suite 700 Washington, DC 20004-2400 t: (202) 842-7800 f: (202) 842-7899 cooley.com
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use of our report dated March 10, 2022, with respect to the consolidated financial statements of Vital Farms, Inc., incorporated herein by reference.
/s/ KPMG LLP
Austin, Texas
May 4, 2022
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
Vital Farms, Inc.
(Exact Name of Registrant as Specified in its Charter)
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Security Type |
Security Class Title |
Fee Calculation Rule |
Amount Registered(1) |
Proposed Maximum Offering Price Per Share |
Maximum Aggregate Offering Price |
Fee Rate |
Amount of Registration Fee(6) |
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Equity |
2020 Equity Incentive Plan, Common Stock, $0.0001 par value per share |
Other |
1,619,758.00(2) |
$11.64(4) |
$18,853,984.00 |
.0000927 |
$1,748 |
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Equity |
2020 Employee Stock Purchase Plan, Common Stock, $0.0001 par value per share |
Other |
404,939.00((3) |
$9.90(5) |
$4,008,897.00 |
.0000927 |
$372 |
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Total Offering Amounts |
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$22,862,881.00 |
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$2,120 |
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Total Fees Previously Paid |
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– |
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Total Fee Offsets |
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– |
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Net Fee Due |
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$2,120 |
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(1) |
Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of common stock that become issuable under the above-named plans by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without receipt of consideration which results in an increase in the number of Vital Farms, Inc.’s (the “Registrant”) outstanding shares of common stock, par value $0.0001 per share (the “Common Stock”). |
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(2) |
Represents additional shares of the Registrant’s Common Stock reserved for future grant under Vital Farms, Inc. 2020 Equity Incentive Plan (the “2020 Plan”) as a result of the automatic increase in shares reserved thereunder on January 1, 2021 pursuant to the terms of the 2020 Plan. The 2020 Plan provides that an additional number of shares will automatically be added annually to the shares authorized for issuance under the 2020 Plan on January 1, 2021 through January 1, 2030, in an amount equal to the lesser of (a) 4% of the total number of shares of Common Stock outstanding on December 31st of the preceding calendar year and (b) a number of shares of Common Stock designated by action of the Registrant’s board of directors. |
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(3) |
Represents additional shares of the Registrant’s Common Stock reserved for issuance under the Vital Farms, Inc. 2020 Employee Stock Purchase Plan (the “ESPP”) as a result of the automatic increase in shares reserved thereunder on January 1, 2021 pursuant to the terms of the ESPP. The ESPP provides that an additional number of shares will automatically be added annually to the shares authorized for issuance under the ESPP on January 1, 2021 through January 1, 2030. The number of shares added each year will be equal to the lesser of: (a) 1% of the total number of shares of Common Stock outstanding on the last day of the calendar month before the date of the automatic increase; (b) 900,000 shares of Common Stock and (c) a number of shares of Common Stock designated by action of the Registrant’s board of directors prior to |
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the date of the increase. |
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(4) |
Estimated pursuant Rule 457(c) and Rule 457(h) solely for the purpose of calculating the registration fee. The proposed maximum offering price per share and proposed maximum aggregate offering price are based on the average high and low sale prices of the Common Stock as reported on The Nasdaq Global Market on April 28, 2022. |
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(5) |
Estimated pursuant to Rule 457(c) and Rule 457(h) solely for the purpose of calculating the registration fee. The proposed maximum offering price per share and proposed maximum aggregate offering price are based on the average high and low sale prices of the Common Stock as reported on The Nasdaq Global Market on April 28, 2022, multiplied by 85%, which is the percentage of the price per share applicable to purchases under the ESPP. |
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(6) |
The Registrant does not have any fee offsets. |
