As filed with the Securities and Exchange Commission on March 4, 2016 Registration No. 333- | ||||
UNITED STATES SECURITIES AND EXCHANGE COMMISSION | ||||
Washington, D.C. 20549 | ||||
FORM S‑8 | ||||
REGISTRATION STATEMENT | ||||
UNDER THE SECURITIES ACT OF 1933 | ||||
ON DECK CAPITAL, INC. | ||||
(Exact name of registrant as specified in its charter) | ||||
Delaware | 42-1709682 | |||
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | |||
1400 Broadway, 25th Floor New York, New York 10018 | ||||
(Address of principal executive offices, including zip code) | ||||
2014 Equity Incentive Plan 2014 Employee Stock Purchase Plan | ||||
(Full title of the plan) | ||||
Noah Breslow Chief Executive Officer On Deck Capital, Inc. 1400 Broadway, 25th Floor New York, New York 10018 (888) 269-4246 | ||||
(Name, address and telephone number, including area code, of agent for service) | ||||
Copies to: | ||||
Larry W. Sonsini Tony Jeffries Damien Weiss Wilson Sonsini Goodrich & Rosati, P.C. 650 Page Mill Road Palo Alto, California 94304 (650) 493-9300 | Cory Kampfer Robert Zuccaro On Deck Capital, Inc. 1400 Broadway, 25th Floor New York, New York 10018 (888) 269-4246 | |||
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act (Check one). | ||||
Large accelerated filer | ¨ | Accelerated filer | ý | |
Non-accelerated filer (Do not check if a smaller reporting company) | ¨ | Smaller reporting company | ¨ | |
CALCULATION OF REGISTRATION FEE | ||||
Title of Securities to be Registered | Amount to be Registered (1) | Proposed Maximum Offering Price Per Share | Proposed Maximum Aggregate Offering Price | Amount of Registration Fee |
Common Stock, $0.005 par value per share, reserved for issuance pursuant to the 2014 Equity Incentive Plan | 2,802,408 (2) | $6.55(4) | $18,355,772.40 | $1,849 |
Common Stock, $0.005 par value per share, reserved for issuance pursuant to the 2014 Employee Stock Purchase Plan | 202,732 (3) | $5.57(5) | $1,129,217.24 | $114 |
TOTAL | 3,005,140 | $19,484,989.64 | $1,963 |
(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 the Registrant’s common stock that become issuable under the 2014 Equity Incentive Plan (the “2014 Plan”) and 2014 Employee Stock Purchase Plan (the “2014 ESPP”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding shares of common stock. |
(2) | Represents an annual increase on January 1, 2016 to the number of shares of the Registrant’s common stock reserved for issuance under the 2014 Plan, which annual increase is provided for in the 2014 Plan. |
(3) | Represents an annual increase on January 1, 2016 to the number of shares of the Registrant’s common stock reserved for issuance under the 2014 ESPP, which annual increase is provided for in the 2014 ESPP. |
(4) | Estimated in accordance with Rule 457(c) and (h) of the Securities Act solely for the purpose of calculating the registration fee on the basis of $6.55 per share, which is the average of the high and low prices of the Registrant’s common stock, as reported on the New York Stock Exchange, on February 26, 2016. |
(5) | Estimated in accordance with Rule 457(c) and (h) of the Securities Act solely for the purpose of calculating the registration fee on the basis of 85% of $6.55 per share, which is the average of the high and low prices of the Registrant’s common stock, as reported on the New York Stock Exchange, on February 26, 2016. Pursuant to the 2014 ESPP, the purchase price of the shares of common stock reserved for issuance thereunder will be at least 85% of the lower of the fair market value of the Registrant's common stock on the first trading day of the offering period or on the exercise date. |
(1) | The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015, filed with the Commission on March 3, 2016 pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”); |
(2) | All other reports filed by the Registrant with the Commission pursuant to Sections 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Registrant’s Annual Report referred to in (1) above; and |
(3) | The description of the Registrant’s common stock contained in the Company’s Registration Statement on Form 8-A (File No. 001-36779) filed with the Commission on December 9, 2014, pursuant to Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose of updating such description. |
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 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. |
(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 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 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 this 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. |
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. |
Signature | Title | Date | |||
/s/ Noah Breslow Noah Breslow | Chief Executive Officer and Director (Principal Executive Officer) | March 4, 2016 | |||
/s/ Howard Katzenberg Howard Katzenberg | Chief Financial Officer (Principal Financial Officer) | March 4, 2016 | |||
/s/ Nicholas Sinigaglia Nicholas Sinigaglia | Senior Vice President (Principal Accounting Officer) | March 4, 2016 | |||
/s/ David Hartwig David Hartwig | Director | March 4, 2016 | |||
/s/ J. Sanford Miller J. Sanford Miller | Director | March 4, 2016 | |||
/s/ Bruce P. Nolop Bruce P. Nolop | Director | March 4, 2016 | |||
/s/ James D. Robinson III James D. Robinson III | Director | March 4, 2016 | |||
/s/ Jane J. Thompson Jane J. Thompson | Director | March 4, 2016 | |||
/s/ Ronald F. Verni Ronald F. Verni | Director | March 4, 2016 | |||
/s/ Neil E. Wolfson Neil E. Wolfson | Director | March 4, 2016 |
Exhibit Number | Description | Filed / Furnished / Incorporated by Reference from Form * | Incorporated by Reference from Exhibit Number | Date Filed | ||||
4.1 | Specimen common stock certificate of the Registrant | S-1 | 4.1 | 11/10/2014 | ||||
4.2 | 2014 Equity Incentive Plan and forms of agreements thereunder | S-1/A | 10.3 | 12/4/2014 | ||||
4.3 | 2014 Employee Stock Purchase Plan and form of agreement thereunder | S-1/A | 10.4 | 12/4/2014 | ||||
5.1 | Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation | Filed herewith. | ||||||
23.1 | Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm | Filed herewith. | ||||||
23.2 | Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in Exhibit 5.1 hereto) | |||||||
24.1 | Power of Attorney (contained on signature page hereto) |
* | All exhibits incorporated by reference to the registrant's Form S-1 or S-1/A registration statements relate to Registration No. 333-200043 |