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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 11/10/20 GMS Inc. S-8 11/10/20 3:87K Toppan Merrill/FA |
Document/Exhibit Description Pages Size
1: S-8 Registration Statement - Securities for an HTML 49K
Employee Benefit Plan
2: EX-5.1 Opinion of Counsel re: Legality HTML 10K
3: EX-23.2 Consent of Expert or Counsel HTML 5K
| Page | (sequential) | (alphabetic) | ↑Top | ||
|---|---|---|---|---|---|
| 1 | 1st Page – Filing Submission | ||||
| " | 24.1 | ||||
| " | Power of Attorney (included on signature page to this registration statement) | ||||
As filed with the Securities and Exchange Commission on November 10, 2020
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
| GMS Inc. |
| (Exact name of registrant as specified in its charter) |
| Delaware | 46-2931287 |
|
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
| 100 Crescent Centre Parkway, Suite 800 Tucker, Georgia 30084 |
| (Address of Principal Executive Offices and Zip Code) |
|
GMS Inc. 2020 Equity Incentive Plan |
| (Full title of the plan) |
|
Craig D. Apolinsky GMS Inc. Vice President, General Counsel and Corporate Secretary 100
Crescent Centre Parkway, Suite 800 |
| (Name, address and telephone number, including area code, of agent for service) |
Copy to:
William S. Ortwein
Kyle G. Healy
Alston & Bird LLP
One Atlantic Center
1201 W. Peachtree Street
(404) 881-7000
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. (Check one):
| Large accelerated filer | x | Accelerated Filer | ¨ | |||
| Non-accelerated filer | ¨ (Do not check if a 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
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| Title of securities to be registered |
Amount to be |
Proposed maximum offering price per share(2) |
Proposed offering price(2) |
Amount of registration fee(2) | |||||
| Common Stock, par value $0.01 per share | 2,400,000 | $24.73 | $59,352,000 | $6,475.30 | |||||
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| (1) | Consists of 2,400,000 shares of common stock (the “Common Stock”) of GMS Inc. (the “Company”) issuable pursuant to the GMS Inc. 2020 Equity Incentive Plan (the “Plan”), including additional shares that may become issuable in accordance with the adjustment and anti-dilution provisions of the Plan. | ||||||||
| (2) | Estimated solely for purposes of calculating the registration fee in accordance with Rules 457(c) and 457(h) under the Securities Act of 1933, as amended (the “Securities Act”), based on the average of the high and low sales prices per share of the Common Stock as reported on The New York Stock Exchange on November 6, 2020. | ||||||||
C:
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
(a) The documents constituting Part I of this registration statement will be delivered to the participants in the Plan as specified by Rule 428(b)(1) under the Securities Act. These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of this registration statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
(b) Upon written or oral request, the Company will provide, without charge, the documents incorporated by reference in Item 3 of Part II of this registration statement. The documents are incorporated by reference in the Section 10(a) prospectus. The Company will also provide, without charge, upon written or oral request, other documents required to be delivered to employees pursuant to Rule 428(b). Requests for the above-mentioned information should be directed to Craig D. Apolinsky, Vice President, General Counsel and Corporate Secretary, at the address and telephone number on the cover of this registration statement.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents filed with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”) are hereby incorporated by reference into this registration statement:
| (1) | The Company’s Annual Report on Form 10-K for the fiscal year ended April 30, 2020, filed with the Commission on June 25, 2020; |
| (2) | The Company’s Quarterly Report on Form 10-Q for the quarterly period ended July 31, 2020, filed with the Commission on September 3, 2020; |
| (3) | The Company’s Current Reports on Form 8-K filed with the Commission on May 27, 2020, June 17, 2020, July 30, 2020, August 24, 2020 and October 23, 2020; |
| (4) | The description of the common stock contained in the Company’s Registration Statement on Form 8-A, filed with the Commission on May 23, 2016, as supplemented by the “Description of Capital Stock” contained in the Company’s Registration Statement on Form S-3, filed with the Commission on September 4, 2019, and including all amendments or reports filed for the purpose of updating such description; and |
| (5) | All other documents subsequently filed by the Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this registration statement that indicates that all securities offered have been sold or that deregisters all securities that remain unsold. |
Any statement contained in a document incorporated or deemed incorporated herein by reference shall be deemed to be modified or superseded for the purpose of this registration statement to the extent that a statement contained herein or in any subsequently filed document that also is, or is deemed to be, incorporated herein by reference 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 4. | Description of Securities. |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel. |
Not applicable.
C:
| Item 6. | Indemnification of Directors and Officers. |
Section 102 of the Delaware General Corporation Law (“DGCL”) allows a corporation to eliminate the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except in cases where the director breached his or her duty of loyalty to the corporation or its stockholders, failed to act in good faith, engaged in intentional misconduct or a knowing violation of the law, willfully or negligently authorized the unlawful payment of a dividend or approved an unlawful stock redemption or repurchase or obtained an improper personal benefit. The Company's certificate of incorporation contains a provision which eliminates directors' personal liability as set forth above.
The Company’s certificate of incorporation and bylaws provide in effect that the Company shall indemnify its directors and officers to the extent permitted by the DGCL. Section 145 of the DGCL provides that a Delaware corporation has the power to indemnify its directors, officers, employees and agents in certain circumstances. Subsection (a) of Section 145 of the DGCL empowers a corporation to indemnify any director, officer, employee or agent, or former director, officer, employee or agent, who was or is a party or is threatened to be made a party 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 the corporation), against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding provided that such director, officer, employee or agent acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, provided that such director, officer, employee or agent had no reasonable cause to believe that his or her conduct was unlawful.
Subsection (b) of Section 145 of the DGCL empowers a corporation to indemnify any director, officer, employee or agent, or former director, officer, employee or agent, who was or is a party 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 to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorneys' fees) actually and reasonably incurred in connection with the defense or settlement of such action or suit 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 best interests of the corporation, except that no indemnification may be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery shall determine that despite the adjudication of liability such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Section 145 further provides that to the extent that a director or officer or employee of a corporation has been successful in the defense of any action, suit or proceeding referred to in subsections (a) and (b) or in the defense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him or her in connection therewith; that indemnification provided by Section 145 shall not be deemed exclusive of any other rights to which the party seeking indemnification may be entitled; and the corporation is empowered to purchase and maintain insurance on behalf of a director, officer, employee or agent of the corporation against any liability asserted against him or her or incurred by him or her in any such capacity or arising out of his or her status as such whether or not the corporation would have the power to indemnify him or her against such liabilities under Section 145; and that, unless indemnification is ordered by a court, the determination that indemnification under subsections (a) and (b) of Section 145 is proper because the director, officer, employee or agent has met the applicable standard of conduct under such subsections shall be made (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, (2) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (3) by the stockholders.
The Company has in effect insurance policies for general officers' and directors' liability insurance covering all of its officers and directors. In addition, the Company has entered into indemnification agreements with its directors and officers. These indemnification agreements may require the Company, among other things, to indemnify each such director or officer for certain expenses, including attorneys' fees, judgments, fines and settlement amounts incurred by such director or officer in any action or proceeding arising out of his or her service as one of the Company's directors or officers.
C:
| Item 7. | Exemption from Registration Claimed. |
Not applicable.
| Item 8. | Exhibits. |
See the Exhibit Index, which is incorporated herein by reference.
| Item 9. | Undertakings. |
(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 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) of this section 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 Commission by the Company 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 Company’s annual report pursuant to Section 13(a) or 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 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company 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.
C:
C:
Pursuant to the requirements of the Securities Act, the Company 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 Tucker, State of Georgia, on November 10, 2020.
| GMS INC. | ||
| By: | /s/ JOHN C. TURNER, JR. | |
| Name: | John C. Turner, Jr. | |
| Title: | Chief Executive Officer and President | |
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below under the heading “Signatures” constitutes and appoints John C. Turner, Jr. and Craig D. Apolinsky as his or her true and lawful attorney-in-fact, each acting alone, 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 or all amendments (including post-effective amendments) to this registration statement on Form S-8, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission, granting unto said attorney-in-fact 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 for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact, or his or her substitute, acting alone, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date |
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President, Chief Executive Officer and Director (Principal Executive Officer) |
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/s/ SCOTT M. DEAKIN |
Chief Financial Officer (Principal Financial Officer) |
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Chief Accounting Officer (Principal Accounting Officer) |
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/s/ JOHN J. GAVIN |
Director
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/s/ LISA M. BACHMANN |
Director
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Director
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Director
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Director
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/s/ TERI P. MCCLURE |
Director
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/s/ J. DAVID SMITH |
Director
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C:
| This ‘S-8’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| Filed on / Effective on: | 11/10/20 | 4, 8-K | ||
| 11/6/20 | 3, 8-K | |||
| List all Filings | ||||
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 10/23/20 GMS Inc. 8-K:5,9 10/19/20 12:432K Toppan Merrill/FA 9/03/20 GMS Inc. 10-Q 7/31/20 83:8.2M Toppan Merrill Bridge/FA 8/27/20 GMS Inc. DEF 14A 10/22/20 1:6.6M Toppan Merrill/FA 8/24/20 GMS Inc. 8-K:5 8/24/20 10:187K Toppan Merrill/FA 7/30/20 GMS Inc. 8-K:5 7/24/20 10:185K Toppan Merrill/FA 6/25/20 GMS Inc. 10-K 4/30/20 120:14M Toppan Merrill Bridge/FA 6/17/20 GMS Inc. 8-K:5 6/15/20 10:185K Toppan Merrill/FA 5/27/20 GMS Inc. 8-K:5 5/27/20 10:186K Toppan Merrill/FA 9/04/19 GMS Inc. S-3ASR 9/04/19 4:264K Toppan Merrill-FA 5/23/16 GMS Inc. 8-A12B 1:20K Toppan Merrill/FA 5/16/16 GMS Inc. S-1/A 11:5.6M Toppan Merrill-FA |