As filed with the Securities and Exchange Commission on August 5, 2022

Registration Statement No. 333-

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Benefitfocus, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   46-2346314

(State or other jurisdiction of

incorporation or organization)

  

(I.R.S. Employer

Identification No.)

100 Benefitfocus Way

Charleston, South Carolina 29492

(Address, including zip code, of registrant’s principal executive offices)

Benefitfocus, Inc. Third Amended and Restated 2012 Stock Plan

(Full title of the plan)

Joel Collins, Esq.

General Counsel and Chief Legal Officer

100 Benefitfocus Way

Charleston, South Carolina 29492

(843) 849-7476

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

COPIES TO:

Donald R. Reynolds, Esq.

S. Halle Vakani, Esq.

Lorna A. Knick, Esq.

Wyrick Robbins Yates & Ponton LLP

4101 Lake Boone Trail, Suite 300

Raleigh, North Carolina 27607

(919) 781-4000

 

 

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

This Registration Statement is being filed to register an additional 3,200,000 shares of Benefitfocus, Inc. (the “Registrant”) common stock, securities of the same class for which Registration Statements on Form S-8 relating to the Benefitfocus, Inc. Third Amended and Restated 2012 Stock Plan (the “2012 Stock Plan”) are effective. Accordingly, the contents of the previous Registration Statements on Form S-8 filed by the Registrant with the Securities and Exchange Commission (the “Commission”) on November 12, 2013 (File No. 333-192278), June 9, 2017 (File No. 333-218633), August 7, 2019 (File No. 333-233088), and August 7, 2020 (File No. 333-242356) including periodic and current reports filed after the previous Registration Statements on Form S-8 to maintain current information about the Registrant, are incorporated by reference into this Registration Statement pursuant to General Instruction E of Form S-8.

 

Item 3.

Incorporation of Documents by Reference.

The following documents previously filed by the Registrant with the Commission are incorporated herein by reference:

 

  (a)

The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed with the Commission pursuant to Section  13(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) on March 4, 2022, and as amended on May 2, 2022;

 

  (b)

The Registrant’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2022 and June 30, 2022, filed with the Commission pursuant to Section  13(a) of the Exchange Act on May 5, 2022 and August 5, 2022, respectively;

 

  (c)

The Registrant’s Current Reports on Form 8-K, filed with the Commission pursuant to Section 13(a) of the Exchange Act on April  5, 2022 and June 13, 2022;

 

  (d)

The Registrant’s proxy statement on Schedule 14A for its 2022 Annual Meeting of Stockholders, filed with the Commission on May 9, 2022; and

 

  (e)

The description of the Registrant’s common stock contained in Exhibit 4.5 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2021, filed with the SEC on March 4, 2022, and as amended on May 2, 2022, including any amendments or reports 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 to this Registration Statement 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 8.

Exhibits.

The following exhibits are filed as part of this Registration Statement:

 

Exhibit

No.

   

Description

4.1    Restated Certificate of Incorporation (incorporated by reference to the Registrant’s Form 10-Q filed with the Commission on November 12, 2013).
4.1.1    Certificate of Amendment to the Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 of the Registrant’s Form 8-K filed with the Commission on July 1, 2021).
4.2    Second Amended and Restated Bylaws of Registrant (incorporated by reference to Exhibit 3.2 of the Registrant’s Form 8-K filed with the Commission on July 1, 2021).
5.1*    Opinion of Wyrick Robbins Yates & Ponton LLP.
10.1    Benefitfocus, Inc. Third Amended and Restated 2012 Stock Plan (incorporated by reference to Registrant’s Form 8-K filed with the Commission on June 13, 2022).
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).
107*    Filing Fee Table

 

*

Filed herewith.

SIGNATURES

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 5th day of August, 2022.

 

BENEFITFOCUS, INC.
By:  

/s/ Alpana Wegner

  Alpana Wegner
  Chief Financial Officer

POWER OF ATTORNEY

Each person whose signature appears below constitutes and appoints Matthew Levin and Joel Collins, 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.

 

Signature    Capacity    Date

/s/ Douglas A. Dennerline

Douglas A. Dennerline

    Chairman of the Board of Directors    August 5, 2022

/s/ Matthew Levin

Matthew Levin

   

President and Chief Executive Officer

(principal executive officer)

and Director

    August 5, 2022

/s/ Alpana Wegner

Alpana Wegner

   

Chief Financial Officer

(principal financial and accounting officer)

    August 5, 2022

/s/ Alexander Lerner

Alexander Lerner

    Director    August 5, 2022

/s/ A. Lanham Napier

A. Lanham Napier

    Director    August 5, 2022

/s/ John Park

    Director    August 5, 2022
John Park      

/s/ Coretha Rushing

    Director    August 5, 2022
Coretha Rushing      

/s/ Stephen M. Swad

Stephen M. Swad

    Director    August 5, 2022

/s/ Brad Wilson

Brad Wilson

    Director    August 5, 2022

/s/ Zeynep Young

    Director    August 5, 2022
Zeynep Young

 

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