S-8 1 d940884ds8.htm S-8 S-8

As filed with the Securities and Exchange Commission on June 15, 2020.

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 AZEK Company Inc.

(Exact Name of Registrant as Specified in its Charter)

 

 

 

Delaware   90-1017663

(State or Other Jurisdiction of

Incorporation)

  

(I.R.S. Employer

Identification No.)

1330 W Fulton Street, #350

Chicago, IL 60607

   60607
(Address of Principal Executive Offices)   (Zip Code)

The AZEK Company Inc. 2020 Omnibus Incentive Compensation Plan

(Full Title of Plans)

Jesse Singh

Chief Executive Officer

The AZEK Company Inc.

1330 W Fulton Street #350

Chicago, IL 60607

(877) 275-2935

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

Copies to:

 

John L. Savva

Sullivan & Cromwell LLP

1870 Embarcadero Road

Palo Alto, CA 94303

(650) 461-5600

  

Paul Kardish

Chief Legal Officer

The AZEK Company Inc.

1330 W Fulton Street #350

Chicago, IL 60607

(877) 275-2935

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or 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.  ☐

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of securities

to be registered

  

Amount

to be

registered(1)

  

Proposed

maximum

offering price

per share(2)

  

Proposed

maximum

aggregate

offering price(2)

   Amount of
registration fee(2)

Class A Common Stock, par value $0.001 per share, under the The AZEK Company Inc. 2020 Omnibus Incentive Compensation Plan

   15,852,319   $23.00   $364,603,337   $47,326

Total

   15,852,319   $23.00   $364,603,337   $47,326

 

 

(1)

Any additional shares of common stock of The AZEK Company Inc. to be issued as a result of stock dividends, stock splits or similar transactions shall be covered by this Registration Statement as provided in Rule 416(a) under the Securities Act of 1933, as amended.

(2)

Calculated in accordance with Rule 457(h) under the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee, which is based on the initial public offering price of The AZEK Company Inc.’s common stock as set forth in The AZEK Company Inc.’s Prospectus filed with the Securities and Exchange Commission on June 12, 2020 pursuant to Rule 424(b) under the Securities Act of 1933, as amended.

 

 

 

PART I

INFORMATION REQUIRED IN THE

SECTION 10(A) PROSPECTUS

The documents containing information specified by Part I of Form S-8 will be sent or given to participants in The AZEK Company Inc. 2020 Omnibus Incentive Compensation Plan (the “Plan”), as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not being filed with the Commission but constitute (along with the documents incorporated by reference into this Registration Statement on Form S-8 (this “Registration Statement”) pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements of Section 10(a) of the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.

Incorporation of Documents By Reference

The following documents that The AZEK Company Inc. (the “Company”) has filed with the Commission under the Securities Act and the Securities Exchange Act of 1934 (the “Exchange Act”) are incorporated by reference into this Registration Statement:

 

  •  

The Company’s prospectus filed with the Commission on June 12, 2020, pursuant to Rule 424(b) under the Securities Act relating to the Registration Statement on Form S-1, as amended (File No. 333-236325) (the “S-1”), which contains the Company’s audited financial statements for the latest fiscal year for which such statements have been filed; and

 

  •  

The description of the Company’s common stock contained in the Company’s Registration Statement on Form 8-A (File No. 001-39322) filed with the Commission on June 9, 2020 pursuant to Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose of updating such description.

In addition, all reports and other documents subsequently filed by the Company pursuant to Sections 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 then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part thereof from the date of filing of such documents with the Commission. Any statement contained in a document incorporated, or deemed to be incorporated, by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement, or in any other subsequently filed document that also is or is deemed to be incorporated by reference in this Registration Statement, modifies or supersedes such prior statement. Any statement contained in this Registration Statement shall be deemed to be modified or superseded to the extent that a statement contained in a subsequently filed document that is, or is deemed to be incorporated, by reference in this Registration Statement modifies or supersedes such prior statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

No document or information deemed to be furnished and not filed in accordance with the rules of the Commission shall be deemed to be incorporated herein by reference unless such document or information expressly provides to the contrary.

 

Item 4.

Description of Securities

Not applicable.

 

-2-

Item 5.

Interests of Named Experts and Counsel

Not applicable.

 

Item 6.

Indemnification of Directors and Officers

The Company is incorporated under the Delaware General Corporation Law (the “DGCL”).

Section 102 of the DGCL permits a corporation to eliminate the personal liability of directors of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his or her duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit.

Section 145 of the DGCL provides that a corporation has the power to indemnify a director, officer, employee or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he or she is or is threatened to be made a party by reason of such position, if 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, and, in any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to 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 or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

As permitted by the DGCL, the Company’s certificate of incorporation and bylaws provide that the Company will indemnify and advance expenses to its directors and officers, and may indemnify and advance expenses to its employees and other agents, to the fullest extent permitted by Delaware law. If Delaware law is amended to authorize corporate action further eliminating or limiting the personal liability of a director, then the liability of the Company’s directors will be eliminated or limited to the fullest extent permitted by Delaware law, as so amended.

The Company has entered into agreements with its directors and executive officers that will require the Company to indemnify them against expenses, judgments, fines, settlements and other amounts that any such person becomes legally obligated to pay in connection with any proceeding to which such person may be made a party by reason of the fact that such person is or was serving in such capacity, provided such person acted in good faith and in a manner such person reasonably believed to be in, or not opposed to, the Company’s best interests. These indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder. At present, no litigation or proceeding is pending that involves any of the Company’s directors or officers regarding which indemnification is sought, nor is the Company aware of any threatened litigation that may result in claims for indemnification.

The Company will maintain a directors’ and officers’ liability insurance policy. The policy will insure directors and officers against unindemnified losses arising from certain wrongful acts in their capacities as directors and officers and reimburse the Company for those losses for which the Company lawfully indemnifies the directors and officers. The policy will likely contain various exclusions.

 

Item 7.

Exemption from Registration Claimed

Not applicable.

 

-3-

Item 8.

Exhibits

The exhibits filed herewith or incorporated by reference herein are set forth in the Exhibit Index filed as part of this Registration Statement.

EXHIBIT INDEX

 

Exhibit No.    Description
4.1    Form of Certificate of Incorporation of The AZEK Company Inc. (incorporated by reference to Exhibit 3.3 to the Registration Statement on Form S-1, as amended (File No. 333-236325))
4.2    Form of Bylaws of The AZEK Company Inc. (incorporated by reference to Exhibit 3.6 to the Registration Statement on Form S-1, as amended (File No. 333-236325))
5.1    Opinion of Sullivan & Cromwell LLP*
10.1    The AZEK Company Inc. 2020 Omnibus Incentive Compensation Plan (incorporated by reference to Exhibit 10.34 to the Registration Statement on Form S-1, as amended (File No. 333-236325))
23.1    Consent of Sullivan & Cromwell LLP (included in Exhibit 5.1)*
23.2    Consent of PricewaterhouseCoopers LLP*
24.1    Power of Attorney (set forth on signature page)*

 

 

*

Filed herewith.

 

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 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 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in this Registration Statement; and

 

  (iii)

To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;

 

-4-

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic 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 this Registration Statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this 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 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 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.

 

-5-

SIGNATURES

Pursuant to the requirements of the Securities Act, the Company has duly caused this Registration Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Chicago, Illinois on June 15, 2020.

 

The AZEK Company Inc.
By:  

/s/ Jesse Singh

Name:   Jesse Singh
Title:   Chief Executive Officer and President

POWERS OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jesse Singh and Ralph Nicoletti, and each one of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstittuion, for him or her and in their 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 this registration statement that is to be effective on filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange 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, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, 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, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:

 

Signatures

   

Title

   

Date

 

/s/ Jesse Singh

   

Chief Executive Officer, President and Director

(Principal Executive Officer)

   

 

June 15, 2020

Jesse Singh   

/s/ Ralph Nicoletti

   

Senior Vice President and Chief Financial Officer

(Principal Financial Officer)

    June 15, 2020
Ralph Nicoletti   

/s/ Gregory Jorgensen

   

Vice President and Chief Accounting Officer

(Principal Accounting Officer)

    June 15, 2020
Gregory Jorgensen   

/s/ Gary Hendrickson

    Chairman of the Board of Directors    June 15, 2020
Gary Hendrickson      

/s/ Sallie B. Bailey

    Director    June 15, 2020
Sallie B. Bailey      

/s/ Russell Hammond

    Director    June 15, 2020
Russell Hammond      

/s/ James B. Hirshorn

    Director    June 15, 2020
James B. Hirshorn      

/s/ Brian Klos

    Director    June 15, 2020
Brian Klos      

/s/ Ronald A. Pace

    Director    June 15, 2020
Ronald A. Pace      

/s/ Ashfaq Qadri

    Director    June 15, 2020
Ashfaq Qadri      

/s/ Bennett Rosenthal

    Director    June 15, 2020
Bennett Rosenthal      

/s/ Blake Sumler

    Director    June 15, 2020
Blake Sumler