Tilray Brands (TLRY) S-8 Registration of securities for employees

As filed with the U.S. Securities and Exchange Commission on December 18, 2019

RegistrationNo. 333-            

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORMS-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

Tilray, Inc.

(Exact name of Registrant as specified in its charter)

Delaware	82-4310622
(State or other jurisdiction of Incorporation or organization)	(I.R.S. Employer Identification No.)

1100 Maughan Road

Nanaimo, BC, Canada V9X IJ2

(Address of principal executive offices) (Zip code)

Privateer Holdings, Inc. 2011 Equity Incentive Plan

(Full title of the plan)

Brendan Kennedy

President and Chief Executive Officer

2701 Eastlake Avenue E., 3^rd Floor

Seattle, WA 98102

(844)845-7291

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

Copies to:

Dara Redler

General Counsel

2701 Eastlake Avenue E., 3^rd Floor

Seattle, WA 98102

(844)845-7291

John Robertson

Alan Hambelton

Cooley LLP

1700 Seventh Avenue, Suite 1900

Seattle, WA 98101

Tel: (206)452-8700

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, anon-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 Rule12b-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
Class 2 Common Stock, par value $0.0001 per share	3,134,431	$2.99 (2)	$9,371,949	$1,217

(1) Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Registrant’s Class 2 Common Stock that become issuable under the plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of Registrant’s Class 2 Common Stock.

(2) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h). The price per share and aggregate offering price are based upon the weighted average exercise price per share of the outstanding stock options.

EXPLANATORY NOTE

Pursuant to the Agreement and Plan of Merger and Reorganization, dated September 9, 2019 (the “Merger Agreement”), by and among Tilray, Inc. (the “Registrant”), Down River Merger Sub, LLC, a wholly owned subsidiary of Tilray (“Merger Sub”), Privateer Holdings, Inc. (“Privateer”) and, solely in his capacity as the initial Stockholder Representative, Michael Blue, Privateer merged with and into Merger Sub (the “Merger”). As a result of the Merger, consummated on December 12, 2019, Privateer merged with and into Merger Sub, with Merger Sub surviving as a wholly owned subsidiary of the Registrant. In accordance with the Merger Agreement, the Registrant assumed and became the sponsor of the Privateer Holdings, Inc. 2011 Equity Incentive Plan (the “Plan”) and assumed all stock options that were awarded under the Plan and that were outstanding as of the closing of Merger.

The Registrant is filing this Registration Statement on FormS-8 (the “Registration Statement”) for the purpose of registering up to 3,134,431 of its shares of its Class 2 common stock, par value $0.0001 per share (“Common Stock”), issuable upon the exercise of outstanding options originally granted under the Plan and assumed by the Registrant.

PART II

ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE

The following documents filed by the Registrant with the Securities and Exchange Commission are incorporated by reference into this Registration Statement:

(a) the Registrant’s Annual Report onForm 10-K for the fiscal year ended December  31, 2018 (the “2018 Form10-K”), which includes audited financial statements for the Registrant’s latest fiscal year, filed with the Commission onMarch 25, 2019;

(b) the information specifically incorporated by reference into the 2018Form 10-K  from the Registrant’s definitive proxy statement on Schedule 14A, filed with the Commission onApril 15, 2019;

(c) the Registrant’s Quarterly Reports onForm 10-Q, filed with the Commission onMay 15, 2019,August 13, 2019 andNovember 13, 2019; 

(d) the Registrant’s Current Reports onForm 8-K,  filed with the Commission onJanuary  15, 2019,January 25, 2019,February 25, 2019,March 4, 2019 (as amendedApril 30, 2019 andMay 13, 2019),June  3, 2019,June 11, 2019,August 29, 2019,September 10, 2019,December  12, 2019 andDecember 17, 2019;

(e) the description of the Registrant’s Class 2 Common Stock which is contained in the Registrant’s registration statement on Form8-A filed onJuly 16, 2018 (FileNo. 001-38594) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description; and

(f) all other reports and documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form8-K and exhibits furnished on such form that relate to such items) on or 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 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 of this Registration Statement from the date of the filing of such reports and documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein 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 subsequently filed document that also is deemed to be incorporated by reference herein 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.

ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS

Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities, including reimbursement for expenses incurred, arising under the Securities Act.

The Registrant’s amended and restated certificate of incorporation and amended and restated bylaws provide that the Registrant will indemnify its directors and officers, and may indemnify its employees and other agents, to the fullest extent permitted by the Delaware General Corporation Law. However, Delaware law prohibits the Registrant’s certificate of incorporation from limiting the liability of the Registrant’s directors for the following:

• any transaction from which the director derived an improper personal benefit;

• acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;

• unlawful payment of dividends or unlawful stock repurchases or redemptions; and

• any breach of the director’s duty of loyalty to the corporation or to its stockholders.

The Registrant has entered into indemnification agreements with each of its directors and officers. These agreements provide for the indemnification of such persons for all reasonable expenses and liabilities incurred in connection with any action or proceeding brought against them by reason of the fact that they are or were serving in such capacity.

The Registrant may maintain insurance policies that indemnify its directors and officers against various liabilities arising under the Securities Act and the Exchange Act that might be incurred by any director or officer in his capacity as such. The Registrant has obtained director and officer liability insurance to cover liabilities directors and officers may incur in connection with their services to the Registrant.

ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.

Not applicable.

ITEM 8. EXHIBITS

Exhibit Number	Description
4.1(1)	Certificate of Incorporation, as currently in effect.
4.2(2)	Bylaws, as currently in effect.
4.3(3)	Indenture, dated October 10, 2018, between Tilray, Inc. and GLAS Trust Company LLC.
4.4(4)	Form of 5.00% Convertible Senior Note due 2023 (included in Exhibit 4.3).
5.1	Opinion of Cooley LLP.
23.1	Consent of Deloitte, LLP, Independent Registered Public Accounting Firm of Tilray, Inc.
23.2	Consent of Grant Thornton LLP, independent auditors of FHF Holdings Ltd.
23.3	Consent of Cooley LLP (included in Exhibit 5.1).
24.1	Power of Attorney (see signature page hereto).

99.1	Privateer Holdings Inc. 2011 Equity Incentive Plan as amended.
99.2	Forms of Notice of Stock Option Grant, Stock Option Agreement and Exercise Notice and Restricted Stock Purchase Agreement for Privateer Holdings Inc. 2011 Equity Incentive Plan.

(1) Previously filed as Exhibit 3.1 to the Registrant’s Current Report on Form8-K (FileNo. 001-38594), filed with the Commission on December 17, 2019, and incorporated by reference herein.

(2) Previously filed as Exhibit 3.4 to the Registrant’s Amendment No. 1 to the registration statement on FormS-1 (FileNo. 333-225741), filed with the Commission on July 9, 2018, and incorporated by reference herein.

(3) Previously filed as Exhibit 4.1 to the Registrant’s Current Report on Form8-K (FileNo. 001-38594), filed with the Commission on October 10, 2018, and incorporated by reference herein.

(4) Previously filed as Exhibit 4.2 to the Registrant’s Current Report on Form8-K (FileNo. 001-38594), filed with the Commission on October 10, 2018, and incorporated by reference herein.

ITEM 9. UNDERTAKINGS

1.The undersigned registrant hereby undertakes:

(a) 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 a 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)(i) and (a)(ii) 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.

(b) 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c) 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.

2. 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

3. 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 Securities and Exchange 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.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on FormS-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Seattle, State of Washington, on this 18^th day of December, 2019.

TILRAY, INC.
By:	/s/ Brendan Kennedy
	Brendan Kennedy
	President and Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS,that each person whose signature appears below constitute and appoint Brendan Kennedy and Mark Castaneda, and each one of them, as his or her true and lawfulattorneys-in-fact and agents, with full power of substitution and resubstitution, 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 file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto saidattorneys-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 might or could do in person, hereby ratifying and confirming all that saidattorneys-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.

Signature	Title	Date
/s/ Brendan Kennedy Brendan Kennedy	President, Chief Executive Officer and Director(Principal Executive Officer)	December 18, 2019
/s/ Mark Castaneda Mark Castaneda	Chief Financial Officer(Principal Financial Accounting Officer)	December 18, 2019
/s/ Michael Auerbach Michael Auerbach	Director	December 18, 2019
/s/ Rebekah Dopp Rebekah Dopp	Director	December 18, 2019
/s/ Maryscott Greenwood Maryscott Greenwood	Director	December 18, 2019
/s/ Christine St.Clare Christine St.Clare	Director	December 18, 2019