S-8 1 a18-11073_1s8.htm S-8

 

As filed with the Securities and Exchange Commission on May 29, 2018.

Registration No. 333-                

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 


 

FORM S-8

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 


 

Cactus, Inc.

(Exact name of registrant as specified in its charter)

 


 

Delaware

 

35-2586106

(State or other jurisdiction of
incorporation or organization)

 

(I.R.S. Employer
Identification No.)

 

920 Memorial City Way, Suite 300

Houston, TX 77024

(Address, including zip code, of Principal Executive Offices)

 


 

Cactus, Inc. Long Term Incentive Plan

(Full title of the plan)

 

Scott Bender

President and Chief Executive Officer

920 Memorial City Way, Suite 300

Houston, TX 77024

(713) 626-8800

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

 


 

Copies to:

Adorys Velazquez

John P. Johnston

Baker Botts L.L.P

30 Rockefeller Plaza 44th Floor

New York, NY 10112

 


 

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 Securities Exchange Act of 1934, as amended (the “Exchange Act”).

 

Large accelerated filer o

 

Accelerated filer o

 

 

 

Non-accelerated filer x    (Do not check if a smaller reporting company)

 

Smaller reporting company o

 

 

 

Emerging growth companyx

 

 

 

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.  x

 


 

CALCULATION OF REGISTRATION FEE

Title of Each Class of Securities
to Be Registered

 

Amount
To Be
Registered (1)(2)

 

Proposed
Maximum
Offering Price
Per Share (3)

 

Proposed
Maximum
Aggregate
Offering Price (3)

 

Amount of
Registration Fee

 

Class A common stock, par value $0.01 per share

 

3,500,000

 

35.11

 

122,885,000

 

15,300

 

 

(1)     This Registration Statement (as defined below) registers an aggregate of 3,500,000 shares of Class A common stock, $0.01 par value per share (the “Class A Common Stock”), of Cactus, Inc. (the “Registrant”) that may be delivered with respect to awards under the Cactus, Inc. Long Term Incentive Plan (as amended from time to time, the “Plan”).

(2)     Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall be deemed to cover an indeterminate number of additional shares of Class A Common Stock that may become issuable as a result of stock splits, stock dividends or similar transactions pursuant to the adjustment or anti-dilution provisions of the Plan.

(3)     In accordance with Rule 457(h)(1) of the Securities Act, the price of the securities has been estimated pursuant to Rule 457(c) of the Securities Act solely for the purpose of calculating the registration fee, and the price listed is the average of the high and low prices of the Registrant’s Class A Common Stock as reported on the New York Stock Exchange on May  23, 2018.

 

 

 



 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The Registrant will send or give to all participants in the Plan document(s) containing the information required by Part I of Form S-8, as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the “Commission”) under the Securities Act.  In accordance with Rule 428(a)(2) of the Securities Act, the Registrant has not filed such document(s) with the Commission, but such documents (along with the documents incorporated by reference into this Form S-8 registration statement (this “Registration Statement”) pursuant to Item 3 of Part II hereof) shall constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.  The Registrant shall maintain a file of such documents in accordance with the provisions of Rule 428(a)(2) of the Securities Act. Upon request, the Registrant shall furnish to the Commission or its staff a copy or copies of all of the documents included in such file.

 

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PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.   Incorporation of Documents by Reference.

 

Except to the extent that information is deemed furnished and not filed pursuant to securities laws and regulations, the Registrant hereby incorporates by reference into this Registration Statement the following documents:

 

(a)

The Registrant’s prospectus (the “Prospectus”) filed with the Commission pursuant to Rule 424(b) of the Securities Act on February 9, 2018, forming a part of the Registrant’s Registration Statement on Form S-1 (File No. 333-222540), originally filed with the Commission on January 12, 2018;

 

 

(b)

The description of Class A Common Stock included in the Registration Statement on Form 8-A of the Registrant (File No. 001-38390), filed with the Commission on February 6, 2018 pursuant to Section 12 of the Exchange Act (incorporating by reference the description of the Class A Common Stock under the caption “Description of Capital Stock” contained in the Prospectus);

 

 

(c)

The Annual Report on Form 10-K for the year ended December 31, 2017, filed on March 19, 2018;

 

 

(d)

The Quarterly Report on Form 10-Q for the quarter ended March 31, 2018, filed on May 11, 2018; and

 

 

(e)

The Current Report on Form 8-K filed on February 12, 2018 (other than documents or portions of documents deemed to be furnished and not filed).

 

Except to the extent that information is deemed furnished and not filed pursuant to securities laws and regulations, all documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall also be deemed to be incorporated by reference herein and to be a part hereof from the dates of filing of such 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 other subsequently filed document which 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, 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 (the “DGCL”) provides that a corporation may indemnify any person 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 by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise), against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith  and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. A similar standard is applicable in the case of derivative actions (i.e., actions by or in the right of the corporation), except that indemnification extends only to expenses, including attorneys’ fees, incurred in connection with the defense or settlement of such action and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation.

 

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The Registrant’s amended and restated certificate of incorporation and amended and restated bylaws contain provisions that limit the liability of the Registrant’s directors and officers for monetary damages to the fullest extent permitted by the DGCL. Consequently, the Registrant’s directors will not be personally liable to the Registrant or its shareholders for monetary damages for breach of fiduciary duty as a director, except liability:

 

·                  for any breach of the director’s duty of loyalty to the Registrant or its shareholders;

·                  for any act or omission not in good faith or that involve intentional misconduct or knowing violation of law;

·                  under Section 174 of the DGCL regarding unlawful dividends and stock purchases; or

·                  for any transaction from which the director derived an improper personal benefit.

 

Any amendment to, or repeal of, these provisions will not eliminate or reduce the effect of these provisions in respect of any act, omission or claim that occurred or arose prior to that amendment or repeal. If the DGCL is amended to provide for further limitations on the personal liability of directors or officers of corporations, then the personal liability of the Registrant’s directors and officers will be further limited to the fullest extent permitted by the DGCL.

 

In addition, the Registrant has entered into indemnification agreements with its current directors and officers containing provisions that are in some respects broader than the specific indemnification provisions contained in the DGCL. The indemnification agreements require the Registrant, among other things, to indemnify its directors against certain liabilities that may arise by reason of their status or service as directors and to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified. The Registrant also intends to enter into indemnification agreements with its future directors and officers.

 

The Registrant maintains liability insurance policies that indemnify its directors and officers against various liabilities, including certain liabilities arising under the Securities Act and the Exchange Act, which may be incurred by them in their capacity as such.

 

The underwriting agreement entered into in connection with the initial public offering of the Registrant’s Class A Common Stock provides for indemnification of the Registrant’s directors and officers by the underwriters against certain liabilities arising under the Securities Act or otherwise in connection with such offering.

 

Item 7.  Exemption from Registration Claimed.

 

Not applicable.

 

Item 8.   Exhibits.

 

Exhibit
Number

 

Description

 

 

 

4.1

 

Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on February 12, 2018)

 

 

 

4.2

 

Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.2 to the Registrant’s Annual Report on Form 10-K filed with the Commission on March 19, 2018)

 

 

 

4.3

 

Form of Class A Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1 (File No. 333-222540) filed with the Commission on January 12, 2018)

 

 

 

4.4

 

Cactus, Inc. Long Term Incentive Plan (incorporated by reference to Exhibit 10.18 to the Registrant’s Current Report on Form 8-K filed with the Commission on February 12, 2018)

 

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4.5

 

Form of Restricted Stock Agreement (incorporated by reference to Exhibit 10.10 to the Registration Statement on Form S-1 of the Registrant (File No. 333-222540) filed with the Commission on January 12, 2018)

 

 

 

4.6

 

Form of Restricted Stock Unit Agreement (incorporated by reference to Exhibit 10.11 to the Registration Statement on Form S-1 of the Registrant (File No. 333-222540) filed with the Commission on January, 12, 2018)

 

 

 

4.7*

 

Form of Restricted Stock Unit Agreement (Directors, one-year vesting)

 

 

 

4.8*

 

Form of Restricted Stock Unit Agreement (Directors, three-year vesting)

 

 

 

5.1*

 

Opinion of Baker Botts L.L.P.

 

 

 

23.1*

 

Consent of Baker Botts L.L.P. (included in the opinion filed as Exhibit 5.1 to this Registration Statement)

 

 

 

23.2*`

 

Consent of PricewaterhouseCoopers LLP

 

 

 

23.3*

 

Consent of PricewaterhouseCoopers LLP

 

 

 

24.1*

 

Power of Attorney (included on the signature page of this Registration Statement)

 


*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 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 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) 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.

 

(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.

 

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(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.

 

(h)           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.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act, 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 Houston, Texas, on May 29, 2018.

 

 

Cactus, Inc.

 

 

 

 

By:

/s/ Scott Bender

 

Name:

Scott Bender

 

Title:

President, Chief Executive Officer and Director

 

POWER OF ATTORNEY

 

KNOWN ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below authorizes and appoints Scott Bender, Brian Small and Joel Bender, and each of them, any of whom may act without the joinder of the other, 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 any additional registration statement pursuant to Rule 462(b) under the Securities Act, 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 full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully and to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or agents, or their substitute or substitutes, may lawfully do or cause to be done.

 

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities indicated on May 29, 2018.

 

Signature

 

Title

 

 

 

 

 

 

/s/ Scott Bender

 

President, Chief Executive Officer and Director

Scott Bender

 

(Principal Executive Officer)

 

 

 

 

 

 

/s/ Brian Small

 

Chief Financial Officer

Brian Small

 

(Principal Financial Officer)

 

 

 

 

 

 

/s/ Ike Smith

 

Chief Accounting Officer

Ike Smith

 

(Principal Accounting Officer)

 

 

 

 

 

 

/s/ Joel Bender

 

Senior Vice President, Chief Operating Officer, Secretary and Director

Joel Bender

 

 

 

 

 

 

 

 

/s/ Bruce Rothstein

 

Chairman of the Board of Directors

Bruce Rothstein

 

 

 

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/s/ John (Andy) O’Donnell

 

Director

John (Andy) O’Donnell

 

 

 

 

 

 

 

 

/s/ Michael McGovern

 

Director

Michael McGovern

 

 

 

 

 

 

 

 

/s/ Alan Semple

 

Director

Alan Semple

 

 

 

 

 

 

 

 

/s/ Gary Rosenthal

 

Director

Gary Rosenthal

 

 

 

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