As filed with the Securities and Exchange Commission on July 26, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Xos, Inc.
(Exact name of registrant as specified in its charter)
| Delaware |
|
98-1550505 |
(State or other jurisdiction of
incorporation or organization) |
|
(IRS Employer
Identification No.) |
3550 Tyburn Street, Unit 100
Los Angeles, California |
|
90065 |
| (Address of Principal Executive Offices) |
|
(Zip Code) |
Xos, Inc. Amended and Restated 2021 Equity Incentive
Plan
(Full title of the plan)
Christen Romero
General Counsel
Xos, Inc.
3550 Tyburn Street
Los Angeles, California 90065
Tel: (818) 316-1890
(Telephone number, including area code, of agent
for service)
Copies to:
David G. Peinsipp
Logan Tiari
Cooley LLP
3 Embarcadero Center, 20th Floor
San Francisco, California 94111
Tel: (415) 693-2000
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 the Securities Act.
EXPLANATORY NOTE
On April 25, 2024, the Board of Directors of Xos, Inc. (the “registrant”)
adopted, subject to approval of the registrant’s stockholders, and on June 24, 2024, the registrant’s stockholders approved,
the Xos, Inc. Amended and Restated 2021 Equity Incentive Plan (the “2021 Plan”) to increase the aggregate number of shares
of the registrant’s common stock, par value $0.0001 per share (the “Common Stock”), reserved for issuance under the
2021 Plan by 1,180,819 shares. The registrant is filing this Registration Statement on Form S-8 with the Securities and Exchange Commission
(the “Commission”) to register the offering of 1,405,828 additional shares of Common Stock reserved for issuance under the
2021 Plan, which consists of (A) 1,180,819 additional shares of Common Stock pursuant to the 2021 Plan, (B) 32,248 additional shares of
Common Stock underlying restricted stock units that were previously granted under the 2021 Plan and forfeited because of the failure to
vest as of July 19, 2024, and (C) 192,761 shares of Common Stock underlying restricted stock units that were previously granted under
the 2021 Plan and withheld by the registrant to satisfy tax withholding obligations as of July 19, 2024. In accordance with General Instruction
E of Form S-8, and only with respect to the Common Stock being registered under the 2021 Plan, this Registration Statement hereby incorporates
by reference the contents of the Registration Statements on Form S-8 (File Nos. 333-260502, 333-267714, 333-271450 and 333-276781), filed
by the registrant with the Commission on October 26, 2021, October 3, 2022, April 26, 2023 and January 31, 2024, respectively.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed
by the registrant with the Commission are hereby incorporated by reference in this registration statement.
| (a) | the registrant’s annual report on Form 10-K for the fiscal year ended December 31, 2023, filed with
the Commission on March 29, 2024; |
| (b) | the registrant’s quarterly report on Form 10-Q for the fiscal quarter ended March 31, 2024, filed
with the Commission on May 15, 2024; |
| (c) | the registrant’s current reports on Form 8-K filed with the Commission on January 12, 2024, February 1, 2024, March 20, 2024, March 26, 2024 (as amended on June 4, 2024), June 26, 2024 and July 23, 2024; and |
| (d) | the description of the registrant’s securities contained in Exhibit 4.4 of the registrant’s
annual report on Form 10-K for the fiscal year ended December 31, 2021, filed with the Commission on March 30, 2022. |
All reports and other documents
filed by the registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, other than current
reports furnished under Item 2.02 and Item 7.01 of Form 8-K and any exhibits furnished on such form that relate to such items, after the
date of this registration statement, and prior to the filing of a post-effective amendment that indicates that all securities offered
hereby have been sold or that 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 filing of such reports and documents. Any statement contained in a document
incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this registration
statement to the extent that a statement herein or in any other subsequently filed document that 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 8. Exhibits.
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 Los Angeles, State of California on July 26, 2024.
| |
XOS, INC. |
| |
|
| |
/s/ Dakota Semler |
| |
Name: |
Dakota Semler |
| |
Title: |
Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE
PRESENTS, that each person whose signature appears below hereby constitutes and appoints Dakota Semler, Christen Romero and Liana Pogosyan,
and each of them, his or her true and lawful attorneys-in-fact and agents, each 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 sign any and all amendments, including post-effective
amendments, to this registration statement, and to file the same, with exhibits thereto and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys-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, as fully for all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements
of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the
date indicated.
|
Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Dakota Semler |
|
Chief Executive Officer, Chairman |
|
July 26, 2024 |
| Dakota Semler |
|
(Principal Executive Officer) |
|
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| |
|
|
|
|
| /s/ Liana Pogosyan |
|
Acting Chief Financial Officer |
|
July 26, 2024 |
| Liana Pogosyan |
|
(Principal Financial Officer and Principal Accounting Officer) |
|
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| |
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| /s/ Giordano Sordoni |
|
Chief Operating Officer, Director |
|
July 26, 2024 |
| Giordano Sordoni |
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Director |
|
July 26, 2024 |
| Stuart Bernstein |
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| /s/ Luisa Ingargiola |
|
Director |
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July 26, 2024 |
| Luisa Ingargiola |
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| /s/ Alice K. Jackson |
|
Director |
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July 26, 2024 |
| Alice K. Jackson |
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| /s/ George N. Mattson |
|
Director |
|
July 26, 2024 |
| George N. Mattson |
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| /s/ Dietmar Ostermann |
|
Director |
|
July 26, 2024 |
| Dietmar Ostermann |
|
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| /s/ Ed Rapp |
|
Director |
|
July 26, 2024 |
| Ed Rapp |
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| /s/ Michael Richardson |
|
Director |
|
July 26, 2024 |
| Michael Richardson |
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Exhibit 5.1
David G. Peinsipp
+1 (415) 693 2177
dpeinsipp@cooley.com
July 26, 2024
Xos, Inc.
3550 Tyburn Street, Unit 100
Los Angeles, CA 90065
Ladies and Gentlemen:
We have acted as counsel to Xos, Inc., a Delaware
corporation (the “Company”), in connection with the filing by the Company of a Registration Statement on Form
S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”)
covering the offering of up to 1,405,828 shares (the “Shares”) of the Company's common stock, par value $0.0001
per share, issuable pursuant to the Company’s Amended and Restated 2021 Equity Incentive Plan (the “Plan”).
In connection with this opinion, we have examined
and relied upon (a) the Registration Statement and related prospectuses, (b) the Plan, (c) the Company’s certificate of incorporation
and bylaws, each as currently in effect, and (d) such other records, documents, opinions, certificates, memoranda and instruments as in
our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies,
the accuracy, completeness and authenticity of certificates of public officials, and the due authorization, execution and delivery of
all documents by all persons other than the Company where authorization, execution and delivery are prerequisites to the effectiveness
thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified
such matters.
We note that the Company was initially incorporated
under the laws of the Cayman Islands and was domesticated (the “Domestication”) as a corporation in the State
of Delaware in accordance with Section 388 of the General Corporation Law of the State of Delaware (the “DGCL”).
We have assumed all matters determinable under the laws of the Cayman Islands, including without limitation that the approval of the predecessor
of the Plan by the board and shareholders of the Company as a Cayman Islands exempted company prior to the Domestication were done in
accordance with the applicable governing documents of the Company and the laws of the Cayman Islands.
Our opinion is expressed only with respect to
the DGCL. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and
provide no assurance as to compliance with any federal or state securities law, rule or regulation.
Cooley
LLP 3 Embarcadero Center 20th Floor San Francisco, CA 94111-4004
t: (415) 693-2000 f: (415) 693-2222 cooley.com
Xos, Inc.
July 26, 2024
Page Two
On the basis of the foregoing, and in reliance
thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plan, the Registration Statement and the related
prospectuses, will be validly issued, fully paid and nonassessable (except as to Shares issued pursuant to deferred payment arrangements,
which will be fully paid and nonassessable when such deferred payments are made in full).
This opinion is limited to the matters expressly
set forth in this letter, and no opinion has been or should be implied, or may be inferred, beyond the matters expressly stated. This
opinion speaks only as to law and facts in effect or existing as of the date hereof and we have no obligation or responsibility to update
or supplement this opinion to reflect any facts or circumstances that may hereafter come to our attention or any changes in law that may
hereafter occur.
We consent to the filing of this opinion as an
exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent
is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder.
Sincerely,
| Cooley LLP |
|
| |
|
|
| By: |
/s/ David G. Peinsipp |
|
| |
David G. Peinsipp |
|
Cooley LLP 3 Embarcadero
Center 20th Floor San Francisco, CA 94111-4004
t: (415) 693-2000 f: (415) 693-2222 cooley.com
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued
our report dated March 29, 2024 with respect to the consolidated financial statements of Xos, Inc. included in the Annual Report on Form
10-K for the year ended December 31, 2023, which are incorporated by reference in this Registration Statement. We consent to the incorporation
by reference of the aforementioned report in this Registration Statement.
/s/ GRANT
THORNTON LLP
Los Angeles,
California
July 26,
2024
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We consent to the incorporation by reference in the registration statement
of Xos, Inc. on Form S-8 dated July 26, 2024 of our report dated March 8, 2024, with respect to the consolidated financial statements
of ElectraMeccanica Vehicles Corp., which report appears in the Form 8-K/A of Xos, Inc. dated June 4, 2024.
/s/ KPMG LLP
Chartered Professional Accountants
July 26, 2024
Vancouver, Canada
Exhibit 107
Calculation of Filing Fee Table
Form S-8
(Form Type)
Xos, 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 Unit | | |
Maximum Aggregate
Offering Price | | |
Fee Rate | | |
Amount of
Registration Fee | |
| Equity | |
Common Stock, par value $0.0001 per share | |
Other | |
| 1,405,828 | (2) | |
$ | 6.30 | (3) | |
$ | 8,856,716.40 | | |
| 0.00014760 | | |
$ | 1,307.26 | |
| Total Offering Amounts | | |
| | | |
$ | 8,856,716.40 | | |
| 0.00014760 | | |
$ | 1,307.26 | |
| Total Fee Offsets | | |
| | | |
| | | |
| | | |
$ | 1,307.26 | |
| Net Fee Due | | |
| | | |
| | | |
| | | |
$ | — | |
| (1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”),
this registration statement also covers an indeterminate number of additional shares that may be issued to adjust the number of shares
issued pursuant to the plans described herein in the event of a stock dividend, stock split, reverse stock split, extraordinary dividend,
extraordinary distribution, recapitalization, reorganization, merger, combination, consolidation, split-up, spin-off, combination, exchange
of shares, rights offering, separation, reorganization, liquidation or similar event. |
| (2) | Represents shares of the registrant’s Common Stock that were added to the shares available for issuance
under the Xos, Inc. Amended and Restated 2021 Equity Incentive Plan (as amended, the “2021 Plan”), which consists of (A) 1,180,819
additional shares of Common Stock reserved pursuant to the 2021 Plan, (B) 32,248 additional shares of Common Stock underlying restricted
stock units that were previously granted under the 2021 Plan and forfeited because of the failure to vest as of July 19, 2024 and (C)
192,761 additional shares of Common Stock underlying restricted stock units that were previously granted under the 2021 Plan and withheld
by the Company to satisfy tax withholding obligations as of July 19, 2024. |
| (3) | Estimated pursuant to Rules 457(c) and 457(h) under the Securities Act, solely for the purposes of calculating
the registration fee and based on the average of the high and low prices of the registrant’s Common Stock as reported on the Nasdaq
Capital Market on July 22, 2024, which date is within five business days prior to the filing of this registration statement. |
Table 2: Fee Offset Claims and Sources
| | |
Registrant
or Filer Name | |
Form
or Filing Type | |
File
Number | |
Initial
Filing
Date | |
Filing
Date | | |
Fee
Offset
Claimed | | |
Security
Type
Associated
with Fee
Offset
Claimed | |
Security
Title
Associated
with Fee
Offset
Claimed | |
Unsold
Securities
Associated
with Fee
Offset
Claimed | | |
Unsold
Aggregate
Offering
Amount
Associated
with Fee
Offset
Claimed | | |
Fee
Paid
with
Fee
Offset
Source | |
| Rule 457(p) |
| Fee
Offset Claims | |
Xos,
Inc. | |
S-1 | |
333-264258(1) | |
April
13, 2022 | |
| | | |
$ | 1,307.26 | | |
Equity | |
Common Stock,
par value $0.0001 per share | |
| 5,341,356 | (2) | |
$ | 14,101,178.68 | (2) | |
| | |
| | |
| |
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| | | |
| | | |
| |
| |
| | | |
| | | |
| | |
| Fee
Offset Sources | |
Xos, Inc. | |
S-1 | |
333-264258(1) | |
| |
| April
13, 2022 | | |
| | | |
| |
| |
| | | |
| | | |
$ | 1,307.26 | |
| (1) | The registrant previously paid a registration fee of $3,955 in connection with
the registration of the resale of up to 16,160,214 shares of registrant’s common stock, par value $0.0001 per share, with a proposed
maximum aggregate offering price of $42,662,965, under the Registration Statement on Form S-1, initially filed on April 13, 2022 (File
No. 333-264258) by Xos, Inc. (the “Prior Registration Statement”). The registrant has terminated any offering that included
the unsold securities under the Prior Registration Statement. In accordance with Rule 457(p) under the Securities Act, the total amount
of the registration fee due upon the initial filing of this Registration Statement can be offset by $2,550.18, representing the fee associated
with 10,420,124 unsold shares of registrant’s common stock, par value $0.0001 per share, from the Prior Registration Statement.
In accordance with Rule 457(p) under the Securities Act, the registrant is using $1,307.26 of the unused filing fee from the Prior Registration
Statement to offset the registration fee payable in connection with this Registration Statement. Accordingly, no additional registration
fee is due to be paid at this time. |
| (2) | The registrant effected a 1-for-30 reverse stock split on December 6, 2023 (the
“Reverse Split”). References in this Table 2 to security or aggregate offering amounts have not been adjusted to reflect
the Reverse Split. |
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