BMTX BM Technologies Inc

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

BM Technologies, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware		82-310369
(State or other jurisdiction of		(I.R.S. Employer
incorporation or organization)		Identification Number)

 

201 King of Prussia Road, Suite 650

Wayne, PA 19087

(Address of Principal Executive Offices) (Zip Code)

 

BM Technologies, Inc. 2020 Equity Incentive Plan

(Full title of the plan)

 

Luvleen Sidhu

Chief Executive Officer

201 King of Prussia Road, Suite 650

Wayne, PA 19087

(Name and address of agent for service)

 

(877) 327-9515
Telephone number, including area code, of agent for service

 

Copies to:
Jonathan H. Talcott
E. Peter Strand
Nelson Mullins Riley & Scarborough LLP
101 Constitution Avenue NW, Suite 900
Washington, DC 20001
Telephone: (202) 689-2800  

 

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 Securities Act. ☐

 

 

 

EXPLANATORY NOTE

 

This Registration Statement on Form S-8 (this “Registration Statement”) is being filed by BM Technologies, Inc. (the “Registrant”), relating to 1,279,963 shares of common stock, par value $0.0001 per share (the “Common Stock”), issuable under the BM Technologies, Inc. 2020 Equity Incentive Plan (the “Plan”). At the Registrant’s 2023 Annual Meeting of Stockholders, the Registrant’s stockholders approved an amendment to the Plan that provided for an increase of 1,279,963 shares of Common Stock, from 1,220,037 shares to 2,500,000 shares, available for grant under the Plan.

 

The Registrant is filing this Registration Statement pursuant to General Instruction E to Form S-8. Accordingly, this Registration Statement hereby incorporates by reference the contents of the registration statement on Form S-8 filed by the Registrant on September 29, 2021 (File No. 333-259873) (the “Prior Registration Statement”), with respect to the Plan, except as supplemented by the information set forth below. This Registration Statement relates solely to the registration of additional securities of the same class as are registered on the Prior Registration Statement.

 

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

Information required by Part I of this Registration Statement to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”), and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I have been or will be delivered to the participants in the Plan as required by Rule 428(b). Pursuant to General Instruction E to Form S-8, the Registrant hereby incorporates by reference the contents of the Prior Registration Statement, except as supplemented by the information set forth below.

 

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents filed by BM Technologies, Inc. (the “Registrant”) with the U.S. Securities and Exchange Commission (“SEC”) are hereby incorporated by reference into this registration statement (in each case excluding any information furnished and not filed according to applicable rules, such as information furnished pursuant to Item 2.02 or Item 7.01 on any Current Report on Form 8-K):

 

●

the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on March 31, 2023;

 

●

the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2023, filed with the SEC on May 22, 2023;

 

●

the Registrant’s Current Reports on Form 8-K filed with the SEC on January 27, 2023, January 30, 2023, February 13, 2023, March 22, 2023, March 27, 2023, March 27, 2023, March 27, 2023, March 31, 2023, April 14, 2023, May 22, 2023, May 22, 2023 and June 20, 2023, to the extent such information is filed and not furnished with the SEC; and

 

	●	the portions of the Registrant’s definitive Proxy Statement filed with the SEC on May 1, 2023 that are incorporated by reference in Part III of the Registrant’s Annual Report on Form 10-K referred to above; and
	●	the description of the Registrant’s Common Stock set forth in Exhibit 4.3 of the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022 filed with the SEC on March 31, 2023, and any amendment or report filed with the SEC for the purposes of updating such description.

 

All documents subsequently filed with the SEC by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1943, 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 in this registration statement (in each case excluding any information furnished and not filed according to applicable rules, such as information furnished pursuant to Item 2.02 or Item 7.01 on any Current Report on Form 8-K) and to be part hereof from the date of filing of such documents.

 

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.

 

 

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 directors and officers as well as other employees and individuals against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee or agent of the registrant. The DGCL provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaws, agreement, vote of stockholders or disinterested directors or otherwise. The registrant’s certificate of incorporation and bylaws provide for indemnification by the registrant of its directors and officers to the fullest extent permitted by the DGCL.

 

Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (1) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) for unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions or (4) for any transaction from which the director derived an improper personal benefit. The registrant’s certificate of incorporation provides for such limitation of liability to the fullest extent permitted by the DGCL.

 

The registrant has entered into indemnification agreements with certain of its directors and executive officers to provide contractual indemnification in addition to the indemnification provided in its certificate of incorporation. Each indemnification agreement provides for indemnification and advancements by the registrant of certain expenses and costs relating to claims, suits or proceedings arising from his or her service to the registrant or, at the registrant’s request, service to other entities, as officers or directors to the maximum extent permitted by applicable law. The registrant believes that these provisions and agreements are necessary to attract qualified directors.

 

The registrant also maintains standard policies of insurance under which coverage is provided (1) to its directors and officers against loss arising from claims made by reason of breach of duty or other wrongful act, while acting in their capacity as directors and officers of the registrant, and (2) to the registrant with respect to payments which may be made by the registrant to such officers and directors pursuant to any indemnification provision contained in the registrant’s certificate of incorporation and bylaws or otherwise as a matter of law.

 

The foregoing summaries are necessarily subject to the complete text of the statute, the registrant’s certificate of incorporation and bylaws, as amended to date, and the arrangements referred to above and are qualified in their entirety by reference thereto.

 

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

The exhibits required to be filed as part of this registration statement are listed in the Exhibit Index set forth below immediately preceding the signature page to this registration statement.

 

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% 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) above 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 Securities Exchange Act of 1934 that are incorporated by reference in the 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 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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.

 

 

EXHIBIT INDEX

 

Exhibit No.		Description of Exhibit
4.1		Second Amended and Restated Certificate of Incorporation of BM Technologies, Inc., filed with the Secretary of State of Delaware on January 4, 2021 (incorporated by reference to Exhibit 3.1 of Form 8-K filed by the registrant with the SEC on January 8, 2021).
4.2		Amended and Restated Bylaws of BM Technologies, Inc. (incorporated by reference to Exhibit 3.2 of Form 8-K filed by the registrant with the SEC on January 8, 2021).
4.3		BM Technologies, Inc. 2020 Equity Incentive Plan (incorporated by reference to Exhibit 10.7 of Form 8-K filed by the registrant with the SEC on January 8, 2021). #
4.4		First Amendment to BM Technologies, Inc. 2020 Equity Incentive Plan.* #
4.5		Form of BM Technologies, Inc. time vesting RSU Award Agreement (incorporated by reference to Exhibit 4.4 of Form S-8 filed by the registrant with the SEC on September 29, 2021).#
4.6		Form of BM Technologies, Inc. performance vesting RSU Award Agreement (incorporated by reference to Exhibit 4.5 of Form S-8 filed by the registrant with the SEC on September 29, 2021).#
5.1		Opinion of Nelson Mullins Riley & Scarborough LLP.*
23.1		Consent of Nelson Mullins Riley & Scarborough LLP (included in Exhibit 5.1).*
23.2		Consent of KPMG LLP, independent registered public accounting firm.*
24.1		Power of Attorney (included on the signature page hereto).*
107		Filing Fee Table.*

 

*	Filed herewith

 

#	Denotes compensatory plan or arrangement

 

 

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 Wayne, Commonwealth of Pennsylvania, on June 30, 2023.

 

	BM TECHNOLOGIES, INC.
	By:	/s/ James Dullinger
		Name:	James Dullinger
		Title:	Chief Financial Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Luvleen Sidhu, Rajinder Singh, and James Dullinger, and each of them acting alone, with full power of substitution, such person’s true and lawful attorney-in-fact and agent for such person, with full power and authority to do any and all acts and things and to execute any and all instruments which said attorney and agent determines may be necessary or advisable or required to comply with the Securities Act of 1933 and any rules or regulations or requirements of the SEC in connection with this registration statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this registration statement, to any and all amendments, both pre-effective and post-effective, and supplements to this registration statement, and to any and all instruments or documents filed as part of or in conjunction with this registration statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms that said attorney and agent shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts.

 

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities on June 30, 2023:

 

Signature		Title
/s/ Luvleen Sidhu		Co-Chief Executive Officer and Director
Luvleen Sidhu		(Principal Executive Officer)
/s/ Rajinder Singh		Co-Chief Executive Officer
Rajinder Singh		(Principal Executive Officer)
/s/ James Dullinger		Chief Financial Officer
James Dullinger		(Principal Financial and Accounting Officer)
/s/ John Dolan		Director
John Dolan
/s/ Mike Gill		Director
Mike Gill
/s/ Aaron Hodari		Director
Aaron Hodari
/s/ Brent Hurley		Director
Brent Hurley
/s/ A.J. Dunklau		Director
A.J. Dunklau
/s/ Marcy Schwab		Director
Marcy Schwab

 

 

 

II-5

 

Exhibit 4.4

 

FIRST AMENDMENT TO THE BM TECHNOLOGIES, INC. 2020 EQUITY INCENTIVE PLAN

 

This FIRST AMENDMENT TO THE BM TECHNOLOGIES, INC. 2020 EQUITY INCENTIVE PLAN, dated as of January 4, 2021 (the “2020 Plan”), hereby amends the 2020 Plan by deleting in its entirety Section 11(a) thereof and replacing it with the following:

 

11.	Limitation on Awards.

 

(a) Shares Subject to Plan. The aggregate maximum number of Shares for which Awards may be granted pursuant to the Plan shall be 2,500,000; provided, that such number of Shares shall be subject to adjustment thereafter as provided in Section 13. All such Shares may be granted as ISOs.

 

(i) The Shares shall be issued from authorized and unissued Common Stock or Common Stock held in or hereafter acquired for the treasury of the Company.

 

(ii) Shares covered by an Award shall be counted against the limit set forth in this Section 11(a). If any Shares covered by an Award granted under the Plan are not purchased or are forfeited or expire, or if an Award otherwise terminates without delivery of any Common Stock subject thereto, then the number of Shares counted against the aggregate number of Shares available under the Plan with respect to such Award shall, to the extent of any such forfeiture, termination, cash-settlement or expiration, again be available for the grant of Awards under the Plan in the same amount as such Shares were counted against the limit set forth in this section.

 

(iii) If an Option or an SAR terminates or expires without having been fully exercised for any reason, or is canceled or forfeited or cash-settled pursuant to the terms of an Award, the Shares for which the Option or SAR was not exercised may again be the subject of an Award granted pursuant to the Plan. To the extent Shares subject to an Option or stock-settled SAR are withheld by the Company for payment of purchase price or as a means of paying the exercise price, or for payment of federal, state or local income or wage tax withholding requirements, the Shares that are so withheld shall be treated as granted and shall not again be available for subsequent grants of Awards under the Plan.

 

(iv) If any full-value Award (i.e., an equity-based Award other than an Option or SAR) is canceled or forfeited or cash-settled pursuant to the terms of an Award, the Shares for which such Award was canceled or forfeited or cash-settled may again be subject of an Award granted pursuant to the Plan. To the extent Shares subject to a full-value Award are not actually issued to the Grantee at the time the Award is exercised or settled, including where Shares are withheld for payment of federal, state or local income or wage tax withholding, the Shares that are so withheld shall again be available for grants of Awards under the Plan.

 

 

Exhibit 5.1

 

		NELSON MULLINS RILEY & SCARBOROUGH LLP ATTORNEYS AND COUNSELORS AT LAW
		101 Constitution Avenue, NW Suite 900 Washington, DC 20001 T: 202.689.2983 F: 202.689.2952 nelsonmullins.com

 

June 30, 2023

 

BM Technologies, Inc.
201 King of Prussia Road, Suite 650

Wayne, PA 19087

 

RE: Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as counsel to BM Technologies, Inc., a Delaware corporation (the “Company”) in connection with the Registration Statement on Form S-8 (the “Registration Statement”), relating to the Company’s BM Technologies, Inc. 2020 Equity Incentive Plan (the “Plan”), to be filed by the Company with the U.S. Securities and Exchange Commission (the “Commission”) on or about the date hereof. The Registration Statement relates to 1,279,963 shares (the “Shares”) of the Company’s common stock, $0.0001 par value per share (“Common Stock”), for issuance under the Plan.

 

We hereby consent to the filing of this opinion as Exhibits 5 and 23.1 to the Registration Statement and to the reference to our name in the Registration Statement.

 

As counsel to the Company, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of such statutes, documents, corporate records, certificates of public officials, and other instruments as we have deemed necessary for the purpose of this opinion, including the Company’s Second Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws and the record of the proceedings of the directors of the Company.

 

Based upon the foregoing, we are of the opinion that the Shares that may be issued and sold from time to time in accordance with the Plan, have been duly authorized for issuance and will, when issued, sold and, when applicable, paid for in accordance with the Plan, as applicable, be legally issued, fully paid and non-assessable.

 

This opinion is being rendered to be effective as of the effective date of the Registration Statement, and we disclaim any obligation to revise or supplement this opinion should the present Delaware General Corporation Law be changed by legislative action, judicial decision or otherwise, should there be factual developments which might affect any matters or opinions set forth herein or for any other reason.

 

California | Colorado | District of Columbia | Florida | Georgia | Maryland | Massachusetts | New York

North Carolina | South Carolina | Tennessee | West Virginia

 

 

BM Technologies, Inc.

June 30, 2023

Page 2

 

We do not find it necessary for the purposes of this opinion, and accordingly we do not purport to address herein, the application of the securities or “Blue Sky” laws of the various states to the issuance and sale of the Shares.

 

This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein. This opinion is furnished to you in connection with the filing of the Registration Statement and is not to be used, circulated, quoted or otherwise relied upon for any other purpose.

 

	Very truly yours,
	/s/ Nelson Mullins Riley & Scarborough, LLP
	NELSON MULLINS RILEY & SCARBOROUGH, LLP

 

 

 

 

Exhibit 23.2

 

KPMG LLP 1601 Market Street Philadelphia, PA 19103-2499

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the use of our report dated March 31, 2023, with respect to the consolidated financial statements of BM Technologies, Inc., incorporated herein by reference.

 

/s/ KPMG LLP

 

Philadelphia, Pennsylvania
June 30, 2023

 

Exhibit 107

Calculation of Filing Fee Table

 

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

(Form Type)

 

BM Technologies, 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 Share				Maximum Aggregate Offering Price				Fee Rate				Amount of Registration Fee
		Newly Registered Securities
Fees to Be Paid		Equity		Common Stock, $0.0001 par value per share		Other (2)			1,279,963			$	3.00	(2)		$	3,839,889.00				0.0001102			$	423.16
Fees Previously Paid		—		—		—			—				—			$	—				—			$	—
						Total Offering Amount										$	3,839,889.00
						Total Fees Previously Paid																		$	—
						Total Fee Offsets																		$	—
						Net Fees Due																		$	423.16

 

(1)

Represents additional shares of common stock issuable under the BM Technologies, Inc. 2020 Equity Incentive Plan. In addition to such shares, pursuant to Rule 416(a) under the Securities Act, this registration statement covers an undetermined number of shares of common stock of the registrant that may become issuable to prevent dilution from stock splits, stock dividends or similar transactions with respect to the shares registered hereunder.

 

(2)

Estimated in accordance with Rule 457(c) and Rule 457(h) under the Securities Act, based on the average of the high and low prices for the Registrant’s common stock on NYSE American on June 27, 2023, which date is within five business days prior to filing this registration statement.

  

 

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