As filed with the Securities and Exchange Commission on May 10, 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
The RealReal, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 45-1234222 | |||||||
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | |||||||
| 55 Francisco Street, Suite 600 | ||||||||
| San Francisco, California | 94133 | |||||||
| (Address of Principal Executive Offices) | (Zip Code) | |||||||
THE REALREAL, INC. 2019 EQUITY INCENTIVE PLAN
THE REALREAL, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Todd Suko
Chief Legal Officer and Secretary
55 Francisco Street
Suite 600
San Francisco, CA 94133
(855) 435-5893
(Name, address, including zip code, and telephone number, including area code, of agent for service)
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 AND INCORPORATION OF CERTAIN INFORMATION
BY REFERENCE PURSUANT TO GENERAL INSTRUCTION E OF FORM S-8
This Registration Statement on Form S-8 (this “Registration Statement”) is being filed by The RealReal, Inc., a Delaware corporation (the “Registrant”), to register 4,648,003 additional shares of common stock, par value $0.00001 per share (the “Common Stock”), reserved for issuance under the Registrant’s 2019 Equity Incentive Plan (the “EIP”) and 929,601 shares of Common Stock reserved for issuance under the Employee Stock Purchase Plan, as amended and restated on February 19, 2020 (the “ESPP”), pursuant to the provisions of those plans providing for automatic annual increases in the number of shares reserved for issuance under such plans. This Registration Statement hereby incorporates by reference the contents of the Registrant’s earlier registration statements on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on July 3, 2019 (Registration No. 333-232528) and May 10, 2021 (Registration No. 333-255981), in each case, to the extent not superseded hereby. In accordance with the instructional note to Part I of Form S-8 promulgated by the Commission, the information specified by Part I of Form S-8 has been omitted from this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference in this Registration Statement the following documents and information previously filed with the Commission:
| (1) | The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed with the Commission on February 28, 2022; | |||||||
| (2) | The Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2022, filed with the Commission on May 10, 2022; | |||||||
| (3) | The Registrant’s current report on Form 8-K, including any amendments thereto, filed with the Commission on February 11, 2022; and | |||||||
| (4) | The description of the Common Stock contained in the Registrant’s Registration Statement on Form 8-A filed with the Commission on June 21, 2019, including any amendment or report filed for the purpose of updating such description. | |||||||
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), 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 hereby 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 respective dates of filing of such documents (such documents, and the documents enumerated above, being hereinafter referred to as “Incorporated Documents”).
Any statement contained in an Incorporated Document 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 other subsequently filed Incorporated Document 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.
1
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 San Francisco, State of California on the 10th day of May, 2022.
| The RealReal, Inc. | ||||||||
| By | /s/ Julie Wainwright | |||||||
| Name | Julie Wainwright | |||||||
| Title | Chairperson and Chief Executive Officer | |||||||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Julie Wainwright, Robert Julian and Todd Suko and each of them, as such person’s true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for such person and in such person’s 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 sign any registration statement for the same offering covered by the Registration Statement that is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the 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 and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or such person’s 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 below by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||||||||||||
/s/ Julie Wainwright | Chairperson and Chief Executive Officer | May 10, 2022 | ||||||||||||
| Julie Wainwright | (Principal Executive Officer) | |||||||||||||
/s/ Robert Julian | Chief Financial Officer | May 10, 2022 | ||||||||||||
| Robert Julian | (Principal Financial Officer) | |||||||||||||
/s/ Steve Lo | Senior Vice President, Chief Accounting Officer | May 10, 2022 | ||||||||||||
| Steve Lo | (Principal Accounting Officer) | |||||||||||||
/s/ Chip Baird | Director | May 10, 2022 | ||||||||||||
| Chip Baird | ||||||||||||||
/s/ Caretha Coleman | Director | May 10, 2022 | ||||||||||||
| Caretha Coleman | ||||||||||||||
/s/ Karen Katz | Director | May 10, 2022 | ||||||||||||
| Karen Katz | ||||||||||||||
/s/ Rob Krolik | Director | May 10, 2022 | ||||||||||||
| Rob Krolik | ||||||||||||||
/s/ Niki Leondakis | Director | May 10, 2022 | ||||||||||||
| Niki Leondakis | ||||||||||||||
/s/ Carol Melton | Director | May 10, 2022 | ||||||||||||
| Carol Melton | ||||||||||||||
/s/ James Miller | Director | May 10, 2022 | ||||||||||||
| James Miller | ||||||||||||||
2
Exhibit 107
CALCULATION OF FILING FEE TABLE
FORM S-8
(Form type)
The RealReal, Inc.
(Exact name of Registrant as specified in its charter)
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 | ||||||||||||||||
| Equity | Common Stock, $0.00001 par value per share | Other(3) | 4,468,003(2) | $4.88(3) | $22,682,254.60 | $0.0000927 | $2,102.65 | ||||||||||||||||
| Equity | Common Stock, $0.00001 par value per share | Other(5) | 929,601(4) | $4.15(5) | $3,857,844.15 | $0.0000927 | $357.62 | ||||||||||||||||
| Total Offering Amounts | $26,540,098.80 | — | |||||||||||||||||||||
| Total Fees Previously Paid | — | ||||||||||||||||||||||
| Total Fee Offsets(6) | — | ||||||||||||||||||||||
| Net Fee Due | $2,460.27 | ||||||||||||||||||||||
| (1) | Pursuant to Rule 416 of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers such additional and indeterminate number of shares of Common Stock as may become issuable pursuant to the provisions of The RealReal, Inc. 2019 Equity Incentive Plan (the "EIP") or The RealReal, Inc. Employee Stock Purchase Plan ("ESPP") relating to adjustments for changes resulting from a share dividend, share split, recapitalization or similar transactions. | ||||
| (2) | Represents shares of Common Stock that were automatically added to the shares authorized for issuance under the EIP on January 1, 2022 pursuant to an “evergreen” provision contained in the EIP. Pursuant to such provision, the number of shares reserved for issuance under the EIP automatically increases annually on the first day of each fiscal year, beginning with the fiscal year ending December 31, 2020, and continuing until (and including) the fiscal year ending December 31, 2029, with such annual increase equal to the lesser of (i) 8,000,000 shares of Common Stock, (ii) 5% of the number of shares of Common Stock issued and outstanding on December 31 of the immediately preceding calendar year, and (iii) an amount determined by the Registrant’s board of directors. | ||||
| (3) | Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of $4.88 per share, which is the average of the high and low prices of a share of Common Stock on May 9, 2022, as reported on the Nasdaq Global Market. | ||||
| (4) | Represents shares of Common Stock that were automatically added to the shares authorized for issuance under the ESPP on January 1, 2022 pursuant to an “evergreen” provision contained in the ESPP. Pursuant to such provision, the number of shares reserved for issuance under the ESPP automatically increases annually on the first day of each fiscal year during the term of the ESPP, commencing in 2020, by an amount equal to the lesser of (i) 1,750,000 shares of Common Stock, (ii) 1% of the total number of shares of Common Stock issued and outstanding on December 31 of the immediately preceding calendar year, and (iii) such number of shares of Common Stock as may be established by the Registrant’s board of directors. | ||||
| (5) | Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of 85% of $4.88 per share, which is the average of the high and low prices of a share of Common Stock on May 9, 2022, as reported on the Nasdaq Global Market. Pursuant to the ESPP, the purchase price of the shares of Common Stock reserved for issuance thereunder will be the lesser of (i) 85% of the fair market value of a share of Common Stock on the first business day of the offering period and (ii) 85% of the fair market value of a share of Common Stock on the exercise date. | ||||
| (6) | The Registrant does not have any fee offsets. | ||||
Exhibit 5.1
 | King & Spalding LLP 1185 Avenue of the Americas 34th Floor New York, NY 10036-2601 Tel: +1 212 556 2100 Fax: +1 212 556 2222 www.kslaw.com | |||||||
May 10, 2022
The RealReal, Inc.
55 Francisco Street, Suite 600
San Francisco, California 94133
Ladies and Gentlemen:
We have acted as counsel to The RealReal, Inc., a Delaware corporation (the “Company”), in connection with the preparation of a Registration Statement on Form S-8 (the “Registration Statement”) to be filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement relates to the registration of an aggregate of 5,577,604 shares (the “Shares”) of the Company’s common stock, par value $0.00001 per share, which may be issued pursuant to the terms of The RealReal, Inc. 2019 Equity Incentive Plan and The RealReal, Inc. Employee Stock Purchase Plan (collectively, the “Plans”).
In connection with this opinion, we have examined and relied upon the accuracy of original, certified, conformed or photographic copies of such records, agreements, certificates and other documents as we have deemed necessary or appropriate to enable us to render the opinions set forth below. In all such examinations, we have assumed the genuineness of signatures on original documents and the conformity to such original documents of all documents submitted to us as certified, conformed or photographic copies and, as to certificates of public officials, we have assumed the same to have been properly given and to be accurate. As to matters of fact material to this opinion, we have relied, without independent verification, upon statements and representations of representatives of the Company and public officials.
This opinion is limited in all respects to the Delaware General Corporation Law, and no opinion is expressed with respect to the laws of any other jurisdiction or any effect that such laws may have on the opinions expressed herein. This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein.
Based upon the foregoing, and subject to the assumptions, qualifications and limitations set forth herein, we are of the opinion that the Shares are duly authorized and, when the Shares are issued (a) pursuant to The RealReal, Inc. 2019 Equity Incentive Plan, or upon the exercise or vesting of options, stock appreciation rights, restricted stock units, performance awards or other stock-based awards granted under the Plans, as the case may be, or (b) upon the exercise of options granted under The RealReal, Inc. Employee Stock Purchase Plan, such Shares will be validly issued, fully paid and non-assessable.
This opinion is given as of the date hereof, and we assume no obligation to advise you after the date hereof of facts or circumstances that come to our attention or changes in law that occur, which could affect the opinions contained herein. This opinion is being rendered for the benefit of the Company in connection with the matters addressed herein.
We consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the references to us in such Registration Statement. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
| Very truly yours, | ||
| /s/ King & Spalding LLP | ||
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the use of our reports dated February 28, 2022, with respect to the financial statements of The RealReal, Inc., and the effectiveness of internal control over financial reporting, incorporated herein by reference.
/s/ KPMG LLP
San Francisco, CA
May 10, 2022