As filed with the U.S. Securities and Exchange Commission on March 25, 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

 

 

ENJOY TECHNOLOGY, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   98-1566891

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

3240 Hillview Avenue

Palo Alto, CA

  94304
(Address of Principal Executive Offices)   (Zip Code)

Enjoy Technology, Inc. 2021 Equity Incentive Plan

Enjoy Technology, Inc. 2021 Employee Stock Purchase Plan

(Full titles of the plans)

3240 Hillview Avenue

Palo Alto, CA 94304

1-(888) 463-6569

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

Ron Johnson

Chief Executive Officer

Enjoy Technology, Inc.

3240 Hillview Avenue

Palo Alto, CA 94303

1-(888) 463-6569

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

 

 

Copies to:

 

Tiffany N. Meriweather   Rachel Proffitt
Chief Legal Officer   David Peinsipp
Enjoy Technology, Inc.   David Ambler
3240 Hillview Avenue   Su Lian Lu
Palo Alto, CA 94303   Cooley LLP
1-(888) 463-6569   3 Embarcadero Center,
  20th Floor
  San Francisco, CA 94111
  (415) 693-2000

 

 

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.  ☐

 

 

 


EXPLANATORY NOTE

REGISTRATION OF ADDITIONAL SHARES PURSUANT TO GENERAL INSTRUCTION E

This Registration Statement is being filed for the purpose of registering additional securities of the same class as other securities for which a Registration Statement of Enjoy Technology, Inc. (the “Registrant”) on Form S-8 relating to the same employee benefit plans is effective.

The Registrant previously registered shares of common stock for issuance under its 2021 Equity Incentive Plan (the “2021 Plan”) and its 2021 Employee Stock Purchase Plan (the “2021 ESPP”) pursuant to a Registration Statement on Form S-8 filed with the Securities and Exchange Commission (the “SEC”) on December 21, 2021 (File No. 333-261808) (the “Prior Registration Statement”). In accordance with General Instruction E to Form S-8, the contents of the Prior Registration Statement are hereby incorporated by reference. The Registrant is registering (i) 7,492,009 additional shares of common stock pursuant to the provisions of the 2021 Plan providing for an automatic increase in the number of shares of common stock reserved and available for issuance under the 2021 Plan on January 1, 2022, and (ii) 1,498,401 additional shares of common stock pursuant to the provisions of the 2021 ESPP providing for an automatic increase in the number of shares of common stock reserved and available for issuance under the 2021 ESPP on January 1, 2022.

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 SEC:

(a) The Registrant’s Annual Report on Form 10-K (File No. 001-39800) for the fiscal year ended December 31, 2021 filed with the SEC on March 25, 2022.

(b) The description of the Registrant’s common stock which is contained in a Registration Statement on Form 8-A filed on December 11, 2020 (File No. 001-39800) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as updated by Exhibit 4.3 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, including any amendment or report filed for the purpose of updating such description.

(c) 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

 

Exhibit

Number

       

Incorporated by Reference

  

Exhibit Description

  

Form

  

File No.

  

Exhibit

  

Filing Date

4.1*    Certificate of Incorporation of Enjoy Technology, Inc.    8-K    001-39800    3.1    October 22, 2021
4.2*    Bylaws of Enjoy Technology, Inc.    8-K    001-39800    3.2    October 22, 2021
4.3*    Specimen Common Stock Certificate.    S-4/A    333-256147    4.5    June 24, 2021
5.1    Opinion of Cooley LLP.            
23.1    Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm.            
23.2    Consent of Cooley LLP (included in Exhibit 5.1 hereto).            
24.1    Power of Attorney (included on the signature page hereto).            
99.1*    Enjoy Technology, Inc. 2021 Equity Incentive Plan.    S-1    333-260568    10.10    October 28, 2021
99.2*    Forms of Stock Option Grant Notice and Stock Option Agreement under the 2021 Equity Incentive Plan.    S-8    333-261808    99.5    December 21, 2021
99.3*    Forms of Restricted Stock Unit Award Notice and Restricted Stock Unit Award Agreement under the 2021 Equity Incentive Plan.    S-8    333-261808    99.6    December 21, 2021
99.4*    Enjoy Technology. Inc. 2021 Employee Stock Purchase Plan.    S-1    333-260568    10.11    October 28, 2021
107    Filing Fee Table            

 

*

Previously Filed.


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 Palo Alto, California, on this 25th day of March, 2022.

 

ENJOY TECHNOLOGY, INC.
By:  

/s/ Fareed Khan

  Fareed Khan
  Chief Financial Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Ron Johnson and Fareed Khan, and each one of them, 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 their 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 his or her substitute or 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.

 

Signature

  

Title

  

Date

/s/ Ron Johnson

   Director and Chief Executive Officer    March 25, 2022
Ron Johnson    (Principal Executive Officer)   

/s/ Fareed Khan

   Chief Financial Officer    March 25, 2022
Fareed Khan    (Principal Financial and Accounting Officer)   

/s/ Jonathan Mariner

   Director and Chief Administrative Office    March 25, 2022
Jonathan Mariner      

/s/ Fred Harman

   Director    March 25, 2022
Fred Harman      

/s/ Salaam Coleman Smith

   Director    March 25, 2022
Salaam Coleman Smith      

/s/ Thomas Ricketts

   Director    March 25, 2022
Thomas Ricketts      

/s/ Brett Varsov

   Director    March 25, 2022
Brett Varsov      

/s/ Denise Young Smith

   Director    March 25, 2022
Denise Young Smith      

/s/ Gideon Yu

   Director    March 25, 2022
Gideon Yu      
EX-5.1

Exhibit 5.1

 

LOGO

Rachel Proffitt

+1 415 693 2031

rproffitt@cooley.com

March 25, 2022

Enjoy Technology, Inc.

3240 Hillview Avenue

Palo Alto, CA 94304

Re: Enjoy Technology, Inc. – Registration Statement on Form S-8

Ladies and Gentlemen:

We have acted as counsel to Enjoy Technology, 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 8,990,410 shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (“Common Stock”), consisting of (a) 7,492,009 shares of Common Stock issuable pursuant to the Company’s 2021 Equity Incentive Plan (the “2021 Plan”) and (b) 1,498,401 shares of Common Stock issuable pursuant to the Company’s 2021 Employee Stock Purchase Plan (the “ESPP,” and together with the 2021 Plan, the “Plans”).

In connection with this opinion, we have examined and relied upon (a) the Registration Statement and related prospectuses, (b) the Company’s Certificate of Incorporation and 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 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.

We note that the Company was initially incorporated under the laws of the Cayman Islands and was domesticated as a corporation in the State of Delaware in accordance with Section 388 of the DGCL (the “Domestication”). We have assumed all matters determinable under the laws of the Cayman Islands, including without limitation that (i) immediately prior to the Domestication, the Company was duly organized, validly existing and in good standing under the laws of the Cayman Islands, (ii) the Company had full power, authority and legal right to domesticate in the State of Delaware pursuant to Section 388 and to authorize the issuance of its shares prior to the Domestication, (iii) the laws of the Cayman Islands permitted the Company to domesticate in the State of Delaware pursuant to Section 388, (iv) the discontinuation of the Company from the Cayman Islands was duly authorized by all necessary corporate action as provided in its governing documents and was duly effected in accordance with Cayman Islands law, (v) any and all consents, approvals and authorizations from applicable Cayman Island governmental authorities required to authorize and permit the Company to domesticate in the State of Delaware pursuant to Section 388 were obtained, (vi) the approval of the 2021 Plan and the ESPP by the board and shareholders of the Company as a Cayman Islands exempted company prior to the Domestication were done in accordance with the applicable governing documents of the Company and the laws of the Cayman Islands.

COOLEY LLP    3 EMBARCADERO CENTER, 20TH FLOOR    SAN FRANCISCO, CA    94111-4004

T: (415) 693-2000 F: (415) 693-2222 COOLEY.COM


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).

We consent to the filing of this opinion as an exhibit to the Registration Statement.

Sincerely,

COOLEY LLP

 

By:  

/s/ Rachel Proffitt

  Rachel Proffitt

COOLEY LLP    3 EMBARCADERO CENTER, 20TH FLOOR    SAN FRANCISCO, CA    94111-4004

T: (415) 693-2000 F: (415) 693-2222 COOLEY.COM

EX-23.1

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 Enjoy Technology, Inc. of our report dated March 25, 2022 relating to the financial statements, which appears in Enjoy Technology, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2021.

/s/ PricewaterhouseCoopers LLP

San Francisco, California

March 25, 2022

EX-FILING FEES

Exhibit 107

Calculation of Filing Fee Tables

Form S-8

Enjoy Technology, Inc.

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

Fees to be

Paid

  Equity       Common Stock, $0.0001 par
value per share, reserved
for issuance pursuant to
the 2021 Equity
Incentive Plan
  Other(2)   7,492,009 (4)   $3.30   $24,742,359.72   .0000927   $2,293.62

Fees to be

Paid

  Equity       Common Stock, $0.0001 par
value per share, reserved
for issuance pursuant to
the 2021 Employee
Stock Purchase Plan
  Other(3)   1,498,401 (5)   $2.81   $4,206,198.91   .0000927   $389.92
    Total Offering Amounts        $28,948,558.63       $2,683.54
    Total Fees Previously Paid        —         —  
    Total Fee Offsets        —         —  
    Net Fee Due        $28,948,558.63       $2,683.54

 

(1)

Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of common stock of Enjoy Technology, Inc. (the “Registrant”) that become issuable under the plans set forth herein by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected that results in an increase to the number of outstanding shares of the Registrant’s common stock, as applicable.

(2)

Estimated in accordance with Rules 457(c) and 457(h) solely for purposes of calculating the registration fee on the basis of $3.30, the average of the high and low prices of the Registrant’s common stock as reported on the Nasdaq Capital Market on March 24, 2022.

(3)

Estimated in accordance with Rules 457(c) and 457(h) solely for purposes of calculating the registration fee on the basis of 85% of $3.30, the average of the high and low prices of the Registrant’s common stock as reported on the Nasdaq Capital Market on March 24, 2022. Pursuant to the Registrant’s 2021 Employee Stock Purchase Plan (the “2021 ESPP”), the purchase price of the shares of common stock will be 85% of the lower of the fair market value of the common stock on the first trading day of the offering period or on the last day of the offering period.

(4)

Represents 7,492,009 additional shares of common stock available for issuance as a result of the annual evergreen increase on January 1, 2022 under the Registrant’s 2021 Equity Incentive Plan (the “2021 Plan”). Pursuant to the evergreen provision contained in the 2021 Plan, the number of shares reserved for issuance under the 2021 Plan will automatically increase on January 1 of each year for a period of 10 years, beginning on January 1, 2022 and continuing through (and including) January 1, 2031, in an amount equal to 5% of the total number of shares of the Registrant’s fully-diluted common stock on December 31 of the preceding year, except that, before the date of any such increase, the Registrant’s board of directors may determine that the increase for such year will be a lesser number of shares.

(5)

Represents 1,498,401 additional shares of common stock available for issuance as a result of the annual evergreen increase on January 1, 2022 under the 2021 ESPP. Pursuant to the evergreen provision contained in the 2021 ESPP, the number of shares reserved for issuance under the 2021 ESPP will automatically increase on January 1 of each year for a period of 10 years, beginning on January 1, 2022 and continuing through (and including) January 1, 2031, by the lesser of (a) 1% of the fully-diluted common stock on December 31 of the preceding year and (b) 4,766,874 shares, except that, before the date of any such increase, the Registrant’s board of directors may determine that there will be no such increase or that the increase for such year will be less than the amount set forth in clauses (a) and (b).