Securities Registration: Employee Benefit Plan (s-8)
June 29 2022 - 04:57PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on June 29, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PHOENIX MOTOR INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware |
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85-4319789 |
(State or Other Jurisdiction of |
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(I.R.S. Employer |
Incorporation or Organization) |
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Identification No.) |
1500 Lakeview Loop
Anaheim, CA 92807
(909) 987-0815
(Address of Principal Executive Offices, Including
Zip Code)
Phoenix Motor Inc. 2021 Omnibus Equity Incentive Plan
(Full Title of the Plan)
Chris Wang
Chief Financial Officer
1500 Lakeview Loop
Anaheim, CA 92807
(909) 987-0815
(Name, Address, and Telephone Number, Including
Area Code, of Agent For Service)
With a copy to:
Mitchell Nussbaum, Esq. |
David Levine, Esq. |
Loeb & Loeb LLP |
345 Park Avenue |
New York, New York 10154 |
Phone: (212) 407-4000 |
Fax: (212) 407-4990 |
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 |
x |
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Emerging growth company |
x |
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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
EXPLANATORY NOTE
This Registration Statement on Form S-8 (the
“Registration Statement”) registers 1,960,000 Shares of Common Stock, $0.0004 par value (the “Common Shares”),
of Phoenix Motor Inc., a Delaware corporation (the “Registrant”), that may be issued under the Phoenix Motor Inc. 2021 Omnibus
Equity Incentive Plan (the “Plan”).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8 will be sent or given to participants in the Plan, as specified
by Rule 428(b)(1) under the Securities Act. Such documents need not be filed with the Securities and Exchange Commission (the “Commission”)
either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of Form S-8,
taken together, will constitute 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, which are on file with the Commission, are
incorporated by reference into this Registration Statement (except for the portions of the Registrant’s Current Reports on Form
8-K furnished pursuant to Item 2.02 or Item 7.01 thereof or otherwise not filed with the Commission which are deemed not to be incorporated
by reference into this Registration Statement):
All documents filed by the Registrant pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the filing of this Registration Statement and prior to the
filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the
date of filing such documents, except as to specific sections of such documents as set forth therein. 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 herein or in any subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not constitute a part of this
Registration Statement, except as so modified or superseded.
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 permits indemnification of its directors,
officers, employees and other agents to the maximum extent permitted by the Delaware General Corporation Law, and its amended and restated
bylaws provide that it will indemnify its directors and executive officers and permits it to indemnify its other officers, employees and
other agents, in each case to the maximum extent permitted by the Delaware General Corporation Law.
The Registrant has entered into indemnification
agreements with its directors and executive officers, whereby it has agreed to indemnify its directors and executive officers to the fullest
extent permitted by law, including indemnification against expenses and liabilities incurred in legal proceedings to which the director
or executive officer was, or is threatened to be made, a party by reason of the fact that such director or executive officer is or was
a director, executive officer, employee or agent of Phoenix Motor Inc., provided that such director or executive officer acted in good
faith and in a manner that the director or executive officer reasonably believed to be in, or not opposed to, the best interest of Phoenix
Motor Inc. At present, there is no pending litigation or proceeding involving a director or executive officer of Phoenix Motor Inc. regarding
which indemnification is sought, nor is the registrant aware of any threatened litigation that may result in claims for indemnification.
The Registrant maintains insurance policies
that indemnify our directors and officers against various liabilities arising under the Securities Act and the Securities Exchange Act
of 1934, as amended, that might be incurred by any director or officer in his capacity as such.
Item 7. |
Exemption from Registration Claimed. |
Not applicable.
3.4 |
|
Certificate of
Amendment to Amended Certificate of Incorporation of Phoenix Motor Inc. (incorporated herein by reference to Exhibit 3.4 to the Registrant’s
Registration Statement on Form S-1 (File no. 333-261384) filed with the Commission on November 29, 2021. |
3.5 |
|
Second Certificate of
Amendment to Amended Certificate of Incorporation of Phoenix Motor Inc. dated March 8, 2022. (incorporated herein by reference to
Exhibit 3.5 to the Registrant’s Registration Statement on Form S-1 (File no. 333-261384) filed with the Commission on April
20, 2022. |
3.6 |
|
Third Certificate of Amendment
to Certificate of Incorporation of Phoenix Motor Inc. dated April 29, 2022. (incorporated herein by reference to Exhibit 3.6 to the
Registrant’s Registration Statement on Form S-1 (File no. 333-261384) filed with the Commission on May 6, 2022. |
3.7 |
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Certificate of Correction
to the Second Amendment to the Amended Certificate of Incorporation (incorporated herein by reference to Exhibit 3.7 to the Registrant’s
Registration Statement on Form S-1 (File no. 333-261384) filed with the Commission on May 17, 2022. |
4.1 |
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Form of Common Stock Certificate
(incorporated herein by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1 (File no. 333-261384)
filed with the Commission on May 24, 2022. |
4.2 |
|
Form of Representative’s
Warrant (incorporated herein by reference to Exhibit 4.2 to the Registrant’s Registration Statement on Form S-1 (File no. 333-261384)
filed with the Commission on May 24, 2022. |
4.3 |
|
Stock Option Agreement dated
January 24, 2021 between the Company and Xiaofeng Peng. (incorporated herein by reference to Exhibit 4.3 to the Registrant’s
Registration Statement on Form S-1 (File no. 333-261384) filed with the Commission on November 29, 2021. |
5.1 |
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Opinion of Loeb & Loeb
LLP* |
10.1 |
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Phoenix
Motor Inc. 2021 Omnibus Equity Incentive Plan (incorporated herein by reference to Exhibit 10.1 to the Registrant’s Registration
Statement on Form S-1 (File no. 333-261384) filed with the Commission on November 29, 2021. |
23.1 |
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Marcum
Bernstein and Pinchuk LLP |
107 |
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Filing Fee Table |
* Included 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 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) do not apply if the registration statement is on Form S-8, and 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.
(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.
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 Anaheim,
California, on the 28th day of June , 2022.
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PHOENIX MOTOR INC. |
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By: |
/s/ Liang Lance Zhou |
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Liang Lance Zhou, Chief Executive Officer |
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Liang Lance Zhou and Chris Wang his true and lawful attorney-in-fact, with full power of substitution and
resubstitution for him and in his 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 any registration statement filed pursuant to Rule 462 under the Securities Act
of 1933, as amended), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities
and Exchange Commission, hereby ratifying and confirming all that said attorney-in-fact or his substitute, each acting alone, may lawfully
do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities held on the dates indicated.
Signature |
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Title |
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Date |
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/s/ Liang Lance Zhou
Liang Lance Zhou |
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Chief Executive Officer and Director
(principal executive officer) |
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June 28, 2022 |
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/s/ Chris Wang
Chris Wang |
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Chief Financial Officer
(principal financial and accounting officer) |
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June 28, 2022 |
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/s/ Denton Peng
Denton Peng |
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Chairman and Director |
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June 28, 2022 |
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/s/ HoongKhoeng Cheong
HoongKhoeng Cheong |
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Director |
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June 28, 2022 |
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/s/ John F. Perkowski
John F. Perkowski |
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Director |
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June 28, 2022 |
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/s/ Steven F. Stivers
Steven E. Stivers |
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Director |
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June 28, 2022 |
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/s/ Sam Van
Sam Van |
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Director |
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June 28, 2022 |
Zhenxing Fu |
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Director |
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June 28, 2022 |
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