S-8 1 d138051ds8.htm S-8 S-8

As filed with the Securities and Exchange Commission on April 27, 2021

Registration No. 333-

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Treace Medical Concepts, Inc.

(Exact name of Registrant as specified in its charter)

 

 

 

Delaware   47-1052611

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification Number)

203 Fort Wade Rd., Suite 150

Ponte Vedra, Florida

  32081
(Address of Principal Executive Offices)   (Zip Code)

2014 Stock Plan

2021 Incentive Award Plan

2021 Employee Stock Purchase Plan

(Full Title of the Plan)

Jaime A. Frias

Chief Legal & Compliance Officer

Treace Medical Concepts, Inc.

203 Fort Wade Rd., Suite 150

Ponte Vedra, Florida, 32801

(904) 373-5940

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

 

Brian J. Cuneo

Phillip S. Stoup

Latham & Watkins LLP

140 Scott Drive

Menlo Park, California 94025

Telephone: (650) 328-4600

Facsimile: (650) 463-2600

 

 

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 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

 

 

 

 

Title of Each Class of

Securities to be Registered

  

Amount

to be

Registered(1)

    

Proposed

Maximum

Offering Price

Per Share(2)

    

Proposed

Maximum

Aggregate Offering

Price(2)

    

Amount of

Registration Fee

 

 

 

Common Stock, $0.001 par value per share

     13,321,435      $ 2.43 - $17.00        $113,247,773        $12,356  

 

 

 

 
(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 the Registrant’s common stock that become issuable under the 2014 Stock Plan, as amended (the “2014 Plan”), the 2021 Incentive Award Plan (the “2021 Plan”) and the Employee Stock Purchase Plan (the “ESPP”) by reason of any stock dividend, stock split, recapitalization or similar transaction effected without the Registrant’s receipt of consideration which would increase the number of outstanding shares of common stock. In addition, pursuant to Rule 416(c) under the Securities Act, this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefits plan described herein.

(2)

Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) and Rule 457(c) promulgated under the Securities Act. The offering price per share and the aggregate offering price (a) for outstanding options granted under the 2014 Plan are based upon the weighted-average exercise price of such outstanding options and (b) for shares reserved for future issuance under the 2021 Plan and the ESPP are based on the initial public offering price of the common stock offered pursuant to the Registration Statement on Form S-1 (File No. 333-254863) that was declared effective on April 22, 2021 and the post-effective amendment thereto (File No. 333-255451). The chart below details the calculations of the registration fee:

 

 

 

 

 
Securities   

Number of

Shares

    

Offering Price

Per Share

  

Aggregate

Offering Price

 

 

 

Shares issuable upon the exercise of outstanding options granted under the 2014 Plan(3)

     7,770,530      $2.43(2)(a)      $18,882,388  

 

 

Shares reserved for future grant under the 2021 Plan(3)

     5,046,278      $17.00(2)(b)      $85,786,726  

 

 

Shares reserved for future grant under the ESPP

     504,627      $17.00(2)(b)      $8,578,659  

 

 

Proposed Maximum Aggregate Offering Price

               $113,247,773  

 

 

 

 
(3)

Pursuant to the terms of the 2021 Plan, any shares subject to outstanding options originally granted under the 2014 Plan that terminate, expire or lapse for any reason without the delivery of shares to the holder thereof shall become available for issuance pursuant to awards granted under the 2021 Plan.

Proposed sale to take place as soon after the effective date of the

registration statement as awards under the plans are exercised and/or vest.

 

 

 


PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The information called for in Part I of Form S-8 is not being filed with or included in this Form S-8 (by incorporation by reference or otherwise) in accordance with the rules and regulations of the Securities and Exchange Commission (the “SEC”).

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

In this registration statement, Treace Medical Concepts, Inc. is sometimes referred to as “Registrant,” “we,” “us” or “our.”

Item 3. Incorporation of Documents by Reference.

The SEC allows us to incorporate by reference the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this registration statement, and later information filed with the SEC will update and supersede this information. We hereby incorporate by reference into this registration statement the following documents previously filed with the SEC:

 

  (a)   The prospectus filed by the Registrant with the SEC pursuant to Rule 424(b) under the Securities Act, on April 26, 2021, relating to the registration statement on Form S-1, as amended (File No. 333-254863), which contains the Registrant’s audited financial statements for the latest fiscal year for which such statements have been filed; and
  (b)   The description of the Registrant’s common stock contained in the Registrant’s registration statement on Form 8-A (File No. 001-40355), filed by the Registrant with the SEC under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on April 20, 2021 including any amendments or reports filed for the purpose of updating such description.

All documents that the Registrant subsequently files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment to the registration statement which indicates that all of the shares of common stock offered have been sold or which deregisters all of such shares 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 the filing of such documents, except as to any portion of any future annual or quarterly report to stockholders or document or current report furnished under current Items 2.02 or 7.01 of Form 8-K, and exhibits furnished on such form that relate to such items, that is not deemed filed under such provisions. For the purposes of this registration statement, any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded 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 such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.

Under no circumstances will any information filed under current Items 2.02 or 7.01 of Form 8-K, and exhibits furnished on such form that relate to such items, be deemed incorporated herein by reference unless such Form 8-K expressly provides to the contrary.

Item 4. Description of Securities.

Not applicable.

 

2


Item 6. Indemnification of Directors and Officers.

Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending, or completed actions, suits, or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee, or agent to the registrant. The Delaware General Corporation Law provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or

otherwise. Article 9 of the registrant’s amended and restated certificate of incorporation provides for indemnification by the registrant of its directors, officers, and employees to the fullest extent permitted by the Delaware General Corporation Law. The registrant has entered into indemnification agreements with each of its current directors, executive officers, and certain other officers to provide these directors and officers additional contractual assurances regarding the scope of the indemnification set forth in the registrant’s amended and restated certificate of incorporation and amended and restated bylaws and to provide additional procedural protections. There is no pending litigation or proceeding involving a director or executive officer of the registrant for which indemnification is sought.

Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for unlawful payments of dividends or unlawful stock repurchases, redemptions, or other distributions, or (iv) for any transaction from which the director derived an improper personal benefit. The registrant’s amended and restated certificate of incorporation provides for such limitation of liability.

The registrant maintains standard policies of insurance under which coverage is provided (i) to its directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act, and (ii) to the registrant with respect to payments that may be made by the registrant to such officers and directors pursuant to the above indemnification provision or otherwise as a matter of law.

Item 7. Exemption from Registration Claimed.

Not applicable.

 

3


Item 8. Exhibits.

 

Exhibit

Number

         Incorporated by Reference  

Filed

Herewith

      Exhibit Description    Form    Date    Number    
  4.1     Amended and Restated Certificate of Incorporation, as currently in effect.    S-1    3/30/21    3.1  
  4.2     Form of Amended and Restated Certificate of Incorporation, to be in effect immediately prior to the completion of the Registrant’s initial public offering.    S-1/A    4/19/21    3.2  
  4.3     Bylaws, as currently in effect.    S-1    3/30/21    3.3  
  4.4     Form of Amended and Restated Bylaws, to be in effect immediately prior to the completion of the Registrant’s initial public offering.    S-1/A    4/19/21    3.4  
  4.5     Form of Common Stock Certificate.    S-1/A    4/19/21    4.2  
  5.1     Opinion of Latham & Watkins LLP.            X
  23.1     Consent of Latham & Watkins LLP (included in Exhibit 5.1).            X
  23.2     Consent of Independent Registered Public Accounting Firm.            X
  24.1     Power of Attorney. Reference is made to the signature page to the Registration Statement.            X
  99.1 (a)#    2014 Stock Plan, as amended.    S-1    3/30/21    10.2(a)  
  99.1 (b)#    Form of Stock Option Agreement for Directors under 2014 Stock Plan.    S-1    3/30/21    10.2 (b)  
  99.1 (c)#    Form of Stock Option Agreement for Employees under 2014 Stock Plan.    S-1    3/30/21    10.2(c)  
  99.2   2021 Incentive Award Plan and related form agreements.            X
  99.3   2021 Employee Stock Purchase Plan.            X

 

#

Indicates management contract or compensatory plan.

 

4


Item 9. Undertakings.

 

(a)

The 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 of 1933;

 

  (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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent 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 registration statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.

 

  (2)

That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, 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.

(b)    The Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(h)    Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 SEC 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.

 

5


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 Ponte Vedra, State of Florida, on this 27th day of April, 2021.

 

Treace Medical Concepts, Inc.
By:  

/s/ John T. Treace

  John T. Treace
  Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints John T. Treace and Mark L. Hair, and each of them acting individually, as his or her true and lawful attorneys-in-fact and agents, each with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement, including post-effective amendments or any abbreviated registration statement and any amendments thereto filed, with all exhibits thereto and other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents, with full power of each to act alone, 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 for all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his or their substitute or substitutes, 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 has been signed by the following persons in the capacities and on the date indicated.

 

Signature

  

Title

  

Date

/s/ John T. Treace

John T. Treace

  

Chief Executive Officer and Director

(Principal Executive Officer)

   April 27, 2021

/s/ Mark L. Hair

Mark L. Hair

  

Chief Financial Officer

(Principal Financial and Accounting Officer)

   April 27, 2021

/s/ James T. Treace

James T. Treace

   Chairman of the Board of Directors    April 27, 2021

/s/ John K. Bakewell

John K. Bakewell

   Director    April 27, 2021

/s/ F. Barry Bays

F. Barry Bays

   Director    April 27, 2021

/s/ Lawrence W. Hamilton

Lawrence W. Hamilton

   Director    April 27, 2021

/s/ Richard W. Mott

Richard W. Mott

   Director    April 27, 2021

/s/ Thomas E. Timbie

Thomas E. Timbie

   Director    April 27, 2021

/s/ John R. Treace

John R. Treace

   Director    April 27, 2021