As filed with the Securities and Exchange Commission on January 17, 2025
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
DIRECT DIGITAL HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
| | | | | |
| Delaware | 87-2306185 |
(State or other jurisdiction of incorporation or organization) | (IRS Employer Identification No.) |
1177 West Loop South, Suite 1310
Houston, Texas 77027
(Address of principal executive offices) (Zip code)
Direct Digital Holdings, Inc. 2022 Omnibus Incentive Plan, as Amended
(Full title of the plan)
Mark Walker
Chairman and Chief Executive Officer
Keith Smith
President
1177 West Loop South, Suite 1310
Houston, Texas 77027
(Name and address of agent for service)
(832) 402-1051
(Telephone number, including area code, of agent for service)
Copies to:
Rakesh Gopalan
David S. Wolpa
Troutman Pepper Locke LLP
301 S. College Street, 34th Floor
Charlotte, North Carolina 28202
(704) 998-4050
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 of 1934, as amended (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. ☐
INCORPORATION BY REFERENCE OF CONTENTS
OF REGISTRATION STATEMENT ON FORM S-8
This Registration Statement on Form S-8 is being filed by Direct Digital Holdings, Inc. (the “Registrant”) for the purpose of registering the offer and sale of an additional 2,000,000 shares of the Registrant’s Class A common stock, par value $0.001 per share (the “Common Stock”), that are issuable pursuant to the Registrant’s 2022 Omnibus Incentive Plan, as amended (the “Plan”). These additional shares of Common Stock are securities of the same class as other securities for which a Registration Statement on Form S-8 of the Registrant relating to the same stock incentive plan is effective. The Registrant previously registered the offer and sale of shares of Common Stock issuable under the Plan under a Registration Statement on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on April 8, 2022 (File No. 333-264207). Pursuant to General Instruction E to Form S-8, this Registration Statement hereby incorporates by reference the contents of the Registration Statements referenced above.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits.
The following documents are filed as exhibits to this registration statement:
| | | | | | | | |
Exhibit
Number | | Description of Exhibit |
5.1* | | |
| 23.1* | | |
23.2* | | |
23.3* | | |
24.1* | | |
| 99.1 | | |
| 99.2* | | |
| 107* | | |
____________
* Filed herewith.
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, State of Texas, on January 17, 2025.
| | | | | |
| DIRECT DIGITAL HOLDINGS, INC. |
| |
| By: | /s/ MARK D. WALKER |
| Name: | Mark D. Walker |
| Title: | Chairman and Chief Executive Officer |
SIGNATURES AND POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Mark Walker and Keith Smith, and each of them, his or her true and lawful agent, proxy and attorney-in-fact, 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 act on, sign and file with the Securities and Exchange Commission any and all amendments (including post-effective amendments) to this registration statement together with all schedules and exhibits thereto, and to take any and all actions which may be necessary or appropriate to be done, as fully for all intents and purposes as he or she might or could do in person, hereby approving, ratifying and confirming all that such agent, proxy and attorney-in-fact or any of his or her substitutes may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities held on the dates indicated.
| | | | | | | | | | | | | | |
Signature | | Title | | Date |
| /s/ MARK D. WALKER | | Chief Executive Officer, Chairman and Director | | January 17, 2025 |
| Mark D. Walker | | (Principal Executive Officer) | |
| | | | |
| /s/ KEITH SMITH | | President and Director | | January 17, 2025 |
| Keith Smith | | |
| | | | |
| /s/ DIANA P. DIAZ | | Chief Financial Officer | | January 17, 2025 |
| Diana P. Diaz | | (Principal Financial and Accounting Officer) | |
| | | | |
| /s/ RICHARD COHEN | | Director | | January 17, 2025 |
| Richard Cohen | | |
| | | | |
| /s/ ANTOINETTE R. LEATHERBERRY | | Director | | January 17, 2025 |
| Antoinette R. Leatherberry | | |
| | | | |
| /s/ MISTELLE LOCKE | | Director | | January 17, 2025 |
| Mistelle Locke | | |
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Direct Digital Holdings, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Security Type | | Security
Class
Title | | Fee
Calculation
Rule(1) | | Amount
Registered(2) | | | Proposed
Maximum
Offering
Price
Per Unit(1) | | | Maximum
Aggregate
Offering
Price(1) | | Fee Rate | | Amount of
Registration
Fee |
| Equity | | Class A common stock, par value $0.001 per share | | Other | | 2,000,000 | | $ | 1.475 | (2) | | $ | 2,950,000 | | 0.00015310 | | $ | 451.65 |
| Total Offering Amounts | | | | | | | | | | $ | 2,950,000 | | | | $ | 451.65 |
| Total Fee Offsets | | | | | | | | | | | | | | | | — |
| Net Fee Due | | | | | | | | | | | | | | | $ | 451.65 |
(1) Pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as amended (the “Securities Act”), and solely for the purpose of calculating the registration fee, the proposed maximum offering price per share is the average of the high and low prices reported for the registrant’s Common Stock quoted on The Nasdaq Capital Market LLC on January 15, 2025.
(2) Represents 2,000,000 additional shares reserved for issuance under the Direct Digital Holdings 2022 Omnibus Incentive Plan, as amended (the “Plan”). Pursuant to Rule 416(a) under the Securities Act, this registration statement also covers an indeterminate number of additional shares as may be necessary to account for adjustment provisions under the Plan as a result of stock splits, stock dividends or similar transactions.
Exhibit 5.1
| | | | | |
| Troutman Pepper Locke LLP 301 S. College Street, 34th Floor Charlotte, NC 28202
troutman.com
|
January 17, 2025
Direct Digital Holdings, Inc.
1177 West Loop South, Suite 1310
Houston, Texas 77027
| | | | | |
Re: | Registration Statement on Form S-8 |
Ladies and Gentlemen:
We have acted as counsel to Direct Digital Holdings, Inc., a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-8 (the “Registration Statement”) that is being filed on the date hereof with the Securities and Exchange Commission (the “SEC”) by the Company pursuant to the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration of an additional 2,000,000 shares (the “Shares”) of the Company’s Class A common stock, par value $0.001 per share (the “Common Stock”), available for future issuance under the Direct Digital Holdings, Inc. 2022 Omnibus Incentive Plan, as amended (the “Plan”).
In connection with this opinion letter, we have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinion set forth below, on certificates of officers of the Company.
For all purposes of the opinion expressed herein, we have assumed, without independent investigation, the following: (a) to the extent that we have reviewed and relied upon certificates of the Company or authorized representatives thereof and certificates and assurances from public officials, all of such certificates, representations and assurances are accurate with regard to factual matters; (b) all documents submitted to us as originals are authentic, complete and accurate, and all documents submitted to us as copies conform to authentic original documents; (c) the genuineness of all signatures; and (d) the Registration Statement will be effective under the Securities Act.
Based on and subject to the foregoing and the exclusions, qualifications, limitations and other assumptions set forth in this opinion letter, we are of the opinion that the Shares have been validly authorized and, when issued and paid for in accordance with and upon the terms and conditions of the Plan, will be validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the General Corporation Law of the State of Delaware (including statutory provisions and reported judicial decisions interpreting the foregoing), as in effect on the date hereof, and we do not express any opinion concerning any other law.
The foregoing opinion is being furnished only for the purpose referred to in the first paragraph of this opinion letter. We hereby consent to the filing of this opinion as Exhibit 5.1 to
Direct Digital Holdings, Inc.
January 17, 2025
Page 2
the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act or the rules and regulations of the SEC promulgated thereunder.
Very truly yours,
/s/ Troutman Pepper Locke LLP
Troutman Pepper Locke LLP
Exhibit 23.1
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM’S CONSENT
We consent to the incorporation by reference in this Registration Statement of Direct Digital Holdings, Inc. on Form S-8 of our report dated April 17, 2023, except for the effects of the revisions disclosed in in Note 2 as to which the date is October 15, 2024, with respect to our audit of the consolidated financial statements of Direct Digital Holdings, Inc. as of December 31, 2022 and for the year ended December 31, 2022 appearing in the Annual Report on Form 10-K of Direct Digital Holdings, Inc. for the year ended December 31, 2023. We resigned as auditors on April 17, 2024 and, accordingly, we have not performed any audit or review procedures with respect to any financial statements appearing in such Prospectus for the periods after the date of our resignation.
/s/ Marcum LLP
Marcum LLP
Houston, Texas
January 17, 2025
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in this Registration Statement of our report dated October 15, 2024, relating to the consolidated financial statements of Direct Digital Holdings, Inc. (the Company) appearing in the Company’s Annual Report on Form 10-K for the year ended December 31, 2023. Our report contains an explanatory paragraph regarding the Company’s ability to continue as a going concern.
/s/ BDO USA, P.C.
New York, New York
January 17, 2025
AMENDMENT TO DIRECT DIGITAL HOLDINGS, INC.
2022 OMNIBUS INCENTIVE PLAN
This Amendment to the Direct Digital Holdings, Inc. 2022 Omnibus Incentive Plan (the “Plan”), has been adopted by the Board of Directors (the “Board”) and approved by the stockholders of Direct Digital Holdings, Inc. (the “Company”), to be effective as of December 27, 2024.
WITNESSETH:
WHEREAS, the Company adopted the Plan for the purposes set forth therein;
WHEREAS, pursuant to Section 17 of the Plan, the Board has the right to amend the Plan with respect to certain matters, provided such amendment must be subject to stockholder approval if necessary to comply with applicable exchange listing requirements;
WHEREAS, increasing the number of shares available for issuance under the Plan, as provided for this in Amendment, requires stockholder approval; and
WHEREAS, the Board has approved and authorized this Amendment to the Plan and has recommended that the stockholders of the Company approve this Amendment;
NOW, THEREFORE, BE IT RESOLVED, that the Plan is hereby amended, subject to and effective as of the date of stockholder approval hereof, in the following particulars:
1. Section 5(a) of the Plan is hereby amended in its entirety as follows:
Subject to Section 15, the aggregate number of shares of Stock in respect of which Awards may be granted under the Plan as of the Effective Date is 3,500,000 shares of Stock, all of which may be granted pursuant to Incentive Stock Options.
Except as specifically set forth herein, the terms of the Plan shall be and remain unchanged, and the Plan as amended shall remain in full force and effect.
The foregoing is hereby acknowledged as being an Amendment to the Plan, as adopted by the Board on November 5, 2024, and approved by the Company’s stockholders on December 27, 2024.
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