As filed with the Securities and Exchange Commission on June 9, 2017
Registration Statement No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
THE SECURITIES ACT OF 1933
(Exact name of registrant as specified in its charter)
|(State of incorporation)||(I.R.S. Employer Identification No.)|
100 Benefitfocus Way
Charleston, South Carolina 29492
(Address, including zip code, of registrants principal executive offices)
Benefitfocus, Inc. Amended and Restated 2012 Stock Plan
(Full title of the plan)
Paris Cavic, Esq.
Vice President and General Counsel
100 Benefitfocus Way
Charleston, South Carolina 29492
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Donald R. Reynolds, Esq.
S. Halle Vakani, Esq.
Andrew J. Gibbons, Esq.
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
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||☐ (Do not check if smaller reporting company)||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 Securities to
Per Share (3)
Offering Price (3)
Common Stock, $0.001 par value per share
(1) Consists of 2,700,000 additional shares reserved for issuance under the Benefitfocus, Inc. Amended and Restated 2012 Stock Plan (the 2012 Stock Plan). 3,428,973 shares under the Plan were registered under Registration Statement No. 333-192278.
(2) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the Securities Act), this Registration Statement also covers any additional shares of Registrants common stock that become issuable under the 2012 Stock Plan by reason of any stock dividend, stock split, recapitalization, or other similar transaction that results in an increase in the number of outstanding shares of the Registrants common stock.
(3) Estimated in accordance with Rules 457(c) and (h) of the Securities Act solely for the purpose of calculating the registration fee based upon the average of the high and low prices of the Registrants common stock on the NASDAQ Global Market on June 5, 2017.
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
|Item 1.||Plan Information.|
The information required by Item 1 is included in documents sent or given by Benefitfocus, Inc. (the Registrant) to participants in the plan covered by this Registration Statement pursuant to Rule 428(b)(1) of the Securities Act.
|Item 2.||Registrant Information and Employee Plan Annual Information.|
The written statement required by Item 2 is included in documents sent or given by the Registrant to participants in the plan covered by this Registration Statement pursuant to Rule 428(b)(1) of the Securities Act.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
|Item 3.||Incorporation of Documents by Reference.|
The following documents previously filed by the Registrant with the Securities and Exchange Commission (the Commission) are incorporated herein by reference:
(a) The Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2016, filed with the Commission pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the Exchange Act) on February 24, 2017;
(b) The Registrants Quarterly Report on Form 10-Q for the quarter ended March 31, 2017, filed with the Commission pursuant to Section 13(a) of the Exchange Act on April 28, 2017.
(c) The Registrants Current Report on Form 8-K, filed with the Commission pursuant to Section 13(a) of the Exchange Act on June 6, 2017; and
(d) The description of the Registrants common stock contained in the Registrants Registration Statement on Form S-1, which description is incorporated by reference into the Form 8-A filed with the Commission on September 5, 2013 pursuant to the Exchange Act and any amendment or report filed for the purpose of updating such description.
All documents filed, but not furnished, by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the filing of a post-effective amendment that indicates that all securities offered under this Registration Statement 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 hereof from the date of filing of such documents. In no event, however, will any of the information, including exhibits, that the Registrant discloses under Item 2.02 and Item 7.01 of any report on Form 8-K that has been or may be, from time to time, furnished to the Commission, be incorporated by reference into or otherwise become a part of this Registration Statement.
Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein (or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein) modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed to constitute a part hereof except as so modified or superseded.
|Item 4.||Description of Securities.|
Not applicable. The class of securities to be offered is registered under Section 12 of the Exchange Act.
|Item 5.||Interests of Named Experts and Counsel.|
|Item 6.||Indemnification of Directors and Officers.|
We are incorporated under the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law (DGCL) provides that a Delaware corporation may indemnify any persons who are, or are threatened to be made, parties to 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 such corporation), by reason of the fact that such person was an officer, director, employee, or agent of such corporation, or is or was serving at the request of such person as an officer, director, employee, or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit, or proceeding, provided that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporations best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify any person who is, or is threatened to be made, a party to any threatened, pending, or completed action or suit by or in the right of the corporation by reason of the fact that such person was a director, officer, employee, or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee, or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporations best interests, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses which such officer or director has actually and reasonably incurred. Our restated certificate of incorporation and amended and restated bylaws will provide for the indemnification of our directors and officers to the fullest extent permitted under the DGCL.
Section 102(b)(7) of the DGCL 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 duties as a director, except for liability for any:
|||breach of a directors duty of loyalty to the corporation or its stockholders;|
|||act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;|
|||unlawful payment of dividends, stock purchase or redemption of shares; or|
|||transaction from which the director derives an improper personal benefit.|
Our restated certificate of incorporation and amended and restated bylaws each include such a provision. Expenses incurred by any officer or director in defending any proceeding in advance of its final disposition shall be paid by us upon delivery to us of an undertaking by or on behalf of such director or officer, to repay all amounts advanced if it should ultimately be determined that such director or officer is not entitled to be indemnified by us.
Section 174 of the DGCL provides, among other things, that a director, who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption, may be held liable for such actions. A director who was either absent when the unlawful actions were approved, or dissented at the time, may avoid liability by causing his or her dissent to such actions to be entered on the books containing minutes of the meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.
As permitted by the DGCL, we have entered into indemnification agreements with each of our directors. Under the terms of our indemnification agreements, we will be required to indemnify each of our directors, to the fullest extent permitted by the laws of the State of Delaware, if the indemnitee acted in good faith and in a manner the indemnitee reasonably believed to be in or not opposed to the best interests of the Registrant, and with respect to any criminal proceeding, had no reasonable cause to believe the indemnitees conduct was unlawful. We must indemnify our officers and directors against any and all (a) costs and expenses (including attorneys fees, expenses and charges) actually and reasonably incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, participating, or being or preparing to be a witness in a proceeding, or responding to, or objecting to, a request to provide discovery in a proceeding, and (b) judgments, penalties, fines, and amounts paid in
settlement actually and reasonably incurred by indemnitee in connection with, in the case of either (a) or (b), any threatened, pending, or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing, or any other actual, threatened, or completed proceeding, by reason of the fact that (x) such person is or was a director, officer, employee, agent, or fiduciary of the Registrant or (y) such person is or was serving at our express written request as a director, officer, employee, agent, or fiduciary of any other corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. The indemnification agreements also require us, if so requested, to advance within 30 days of such request any and all costs and expenses that such indemnitee incurred, provided that such person will repay any such advance if it is ultimately determined that such person is not entitled to be indemnified for such costs and expenses. Our amended and restated bylaws also require that such person return any such advance if it is ultimately determined that such person is not entitled to indemnification by us as authorized by the laws of the State of Delaware.
We are not required to provide indemnification under our indemnification agreements for certain matters, including: (1) indemnification for which the indemnitee has received payment under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; (2) indemnification related to an accounting of profits made from the purchase or sale of securities of our company under Section 16(b) of the Exchange Act or similar provisions of state statutory or common law; or (3) indemnification in connection with any proceedings initiated by the indemnitee unless the Registrants board of directors authorized the proceeding prior to its initiation or the Registrant provides the indemnification, in its sole discretion, pursuant to powers vested in the Registrant under applicable law. The indemnification agreements will require us, to the extent that we maintain an insurance policy or policies providing liability insurance for directors, officers, employees, agents or fiduciaries of our company or of any other corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise that such person serves at the request of our company, to cover such person by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available.
We have an insurance policy covering our officers and directors with respect to certain liabilities, including liabilities arising under the Securities Act, or otherwise.
|Item 7.||Exemption From Registration Claimed.|
See the Exhibit Index.
|(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 this 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 this 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 20% change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective Registration Statement;|
|(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) of this section 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 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 Registrants annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement related to the securities offered therein, and the offering of such securities at the time shall be deemed to be the initial bona fide offering thereof.
(h) 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, 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.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
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 Charleston, State of South Carolina, on the 9 th day of June, 2017.
|By:||/s/ Shawn A. Jenkins|
|Shawn A. Jenkins|
|Chief Executive Officer|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Shawn A. Jenkins and Raymond A. August, and each 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 attorney-in-fact and agent 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 attorney-in-fact and agent, 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.
|/s/ Mason R. Holland, Jr.||Executive Chairman of the Board of Directors||June 9, 2017|
|Mason R. Holland, Jr.|
|/s/ Shawn A. Jenkins||Chief Executive Officer (principal executive officer) and Director||June 9, 2017|
|Shawn A. Jenkins|
|/s/ Raymond A. August||President and Chief Operating Officer (principal financial and accounting officer)||June 9, 2017|
|Raymond A. August|
|/s/ Douglas A. Dennerline||Director||June 9, 2017|
|Douglas A. Dennerline|
|/s/ Joseph P. DiSabato||Director||June 9, 2017|
|Joseph P. DiSabato|
|/s/ Ann H. Lamont||Director||June 9, 2017|
|Ann H. Lamont|
|/s/ A. Lanham Napier||Director||June 9, 2017|
|A. Lanham Napier|
|/s/ Francis J. Pelzer V||Director||June 9, 2017|
|Francis J. Pelzer V|
|/s/ Stephen M. Swad||Director||June 9, 2017|
|Stephen M. Swad|
The following exhibits are filed as part of this Registration Statement:
|4.1||Restated Certificate of Incorporation (incorporated by reference to the Registrants Form 10-Q filed with the Commission on November 12, 2013).|
|4.2||Amended and Restated Bylaws of Registrant (incorporated by reference to the Registrants Form 8-K filed with the Commission on September 19, 2016).|
|5.1||Opinion of Wyrick Robbins Yates & Ponton LLP.|
|10.28||Benefitfocus, Inc. Amended and Restated 2012 Stock Plan (incorporated by reference to Registrants Form 8-K filed with the Commission on June 6, 2017).|
|23.1||Consent of Ernst and Young LLP, Independent Registered Certified Public Accounting Firm.|
|23.2||Consent of Wyrick Robbins Yates & Ponton LLP (included in Exhibit 5.1).|
|24.1||Power of Attorney (included on the signature page to this Registration Statement on Form S-8).|
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
June 9, 2017
100 Benefitfocus Way
Charleston, South Carolina 29492
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 filed on or about the date hereof by Benefitfocus, Inc., a Delaware corporation (the Registrant), with the Securities and Exchange Commission (the Registration Statement), in connection with the registration under the Securities Act of 1933, as amended, of 2,700,000 shares of the Registrants common stock, $0.001 par value per share (the Shares). We understand the Shares are to be issued pursuant to the Benefitfocus, Inc. Amended and Restated 2012 Stock Plan, as may be amended from time to time (the 2012 Plan). In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity with the original of all documents submitted to us as copies thereof.
As the Registrants legal counsel, we have examined the proceedings taken, and are familiar with the proceedings proposed to be taken, in connection with the sale of the Shares pursuant to the 2012 Plan.
It is our opinion that, upon completion of the proceedings being taken or contemplated by us, as your counsel, to be taken prior to the issuance of the Shares, the Shares when issued in the manner referred to in the Registration Statement and in accordance with the 2012 Plan, will be legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement, including the Prospectus constituting a part thereof, and any amendments thereto.
Very truly yours,
/s/ WYRICK ROBBINS YATES & PONTON LLP
CONSENT OF INDEPENDENT REGISTERED CERTIFIED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Benefitfocus, Inc. Amended and Restated 2012 Stock Plan of our report dated February 24, 2017, with respect to the consolidated financial statements of Benefitfocus, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2016, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Raleigh, North Carolina
June 9, 2017