Securities Registration: Employee Benefit Plan (s-8)
December 15 2017 - 4:09PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on December 15, 2017
Registration Statement No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ARCIMOTO, INC.
(Exact name of registrant as specified in its
charter)
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Oregon
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26-1449404
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(State of incorporation)
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(IRS Employer
Identification No.)
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544 Blair Boulevard
Eugene, Oregon 97402
(Address, including zip code, of registrant’s
principal executive offices)
Arcimoto, Inc. Second Amended and Restated
2012 Employee Stock Benefit Plan
Arcimoto, Inc. Amended and Restated 2015
Stock Incentive Plan
(Full title of the plans)
Douglas M. Campoli
Chief Financial Officer
544 Blair Boulevard
Eugene, Oregon 97402
(541) 683-6293
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
W. David Mannheim, Esq.
S. Halle Vakani, Esq.
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
(919) 781-4000
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.
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☐ (Do not check if smaller reporting company)
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Smaller reporting company
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☒
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Emerging growth company
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☒
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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. ☐
CALCULATION OF REGISTRATION FEE
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Title of Securities to
be Registered
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Amount
to be
Registered (1)(2)
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Proposed
Maximum
Offering Price
Per Share (3)
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Proposed
Maximum
Aggregate
Offering Price (3)
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Amount of
Registration Fee
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Common Stock, no par value per share
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1,986,154
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$
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3.70
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$
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7,348,770
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$
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914.92
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TOTAL
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1,986,154
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$
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3.70
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$
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7,348,770
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$
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914.92
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(1)
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Consists of (i) 986,154 shares reserved for issuance under
the Arcimoto, Inc. Second Amended and Restated 2012 Employee Stock Benefit Plan (the “2012 Stock Plan”) and (ii) 1,000,000
shares reserved for issuance under the Arcimoto, Inc. Amended and Restated 2015 Stock Incentive Plan (the “2015 Stock Plan”).
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(2)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this
Registration Statement also covers any additional shares of the Registrant’s common stock that become issuable under
the 2012 Stock Plan or 2015 Stock Plan by reason of any stock dividend, stock split, recapitalization, or other similar
transaction that results in an increase in the number of outstanding shares of the Registrant’s common stock.
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(3)
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Estimated in accordance with Rules 457(c) and (h) of the Securities
Act solely for the purpose of calculating the registration fee based upon the average of the high and low prices of the Registrant’s
common stock on the NASDAQ Capital Market on December 12, 2017.
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PART I
INFORMATION REQUIRED IN THE SECTION
10(a) PROSPECTUS
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Item 1.
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Plan Information.
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Information required by Item 1 is included in documents sent
or given by Arcimoto, Inc. (the “Registrant”) to participants in the plan covered by this Registration Statement pursuant
to Rule 428(b)(1) of the Securities Act.
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Item 2.
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Registrant Information and Employee Plan Annual Information.
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The written statement required by Item 2 is included in documents
sent or given by the Registrant to participants in the plan covered by this Registration Statement pursuant to Rule 428(b)(1) of
the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
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Item 3.
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Incorporation of Documents by Reference.
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The following documents previously filed by the Registrant with
the Securities and Exchange Commission (the “Commission”) are incorporated herein by reference:
(a) The Registrant’s financial statements for the fiscal
year ended December 31, 2016 contained in the Registrant’s Post-Qualification Offering Statement on Form 1-A (File No. 024-10710),
filed with the Commission on September 18, 2017, as amended;
(b) The Registrant’s Quarterly Reports on
Form 10-Q for the quarters ended March 31, 2017, June 30, 2017 and September 30, 2017, filed with the Commission pursuant
to Section 13(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) on November 13, 13, and
20, 2017, respectively;
(c) The Registrant’s Current Report on Form 8-K, filed
with the Commission pursuant to Section 13(a) of the Exchange Act on October 4, 2017; and
(d) The description of the Registrant’s common stock
contained in the Registrant’s Post-Qualification Offering Statement on Form 1-A (File No. 024-10710), filed with the Commission
on September 18, 2017, as amended, which description is incorporated by reference into the Form 8-A filed with the Commission on
September 21, 2017 pursuant to the Exchange Act and any amendment or report filed for the purpose of updating such description.
All documents filed, but not furnished, by the Registrant
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the filing of a post-effective
amendment that indicates that all securities offered under this Registration Statement have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents. In no event, however, will any of the information, including exhibits, that the Registrant discloses
under Item 2.02 and Item 7.01 of any report on Form 8-K that has been or may be, from time to time, furnished to the Commission,
be incorporated by reference into or otherwise become a part of this Registration Statement.
Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained 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 statement so modified or superseded shall not be deemed to constitute a part hereof except as so modified or
superseded.
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Item 4.
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Description of Securities.
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Not applicable. The class of securities to be offered is registered
under Section 12 of the Exchange Act.
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Item 5.
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Interests of Named Experts and Counsel.
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Not applicable.
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Item 6.
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Indemnification of Directors and Officers.
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Under the Oregon Business Corporation Act (the “Oregon Act”),
our Second Amended and Restated Articles of Incorporation (the “Articles”) and our Second Amended and Restated Bylaws
(the “Bylaws”), we have the ability to indemnify directors and officers against liabilities that they may incur in
such capacities.
The Oregon Act authorizes a corporation to indemnify an individual
made a party to a proceeding because the individual is or was an officer or director against certain liability incurred in the
proceeding if:
(a) the conduct of the individual was in good faith;
(b) the individual reasonably believed that his or her
conduct was in the best interests of the corporation, or at least not opposed to its best interests;
(c) in the case of any criminal proceeding, the individual
had no reasonable cause to believe his or her conduct was unlawful;
(d) in the case of any proceeding by or in the right of
the corporation, the individual was not adjudged liable to the corporation; and
(e) in connection with any proceeding (other than a proceeding
by or in the right of the corporation) charging improper personal benefit to the individual, the individual was not adjudged liable
on the basis that he or she improperly received personal benefit.
Section 6.3 of our Bylaws authorizes us to indemnify an individual
made a party to a proceeding because the individual is or was an officer or director against certain liability incurred in the
proceeding if:
(a) the conduct of the director or officer was in good
faith;
(b) the director or officer reasonably
believed that his or her conduct was in the Company's best interests, or at least not opposed to its best interests;
(c) in the case of any criminal proceeding,
the director or officer had no reasonable cause to believe his or her conduct was unlawful; and
(d) a director's or officer's conduct
was with respect to an employee benefit plan for a purpose the director or officer reasonably believed to be in the interests of
the participants in and beneficiaries of the plan and the conduct satisfies the requirement of (b) above.
The Oregon Act also authorizes a court to order indemnification,
whether or not the above standards of conduct have been met, if the court determines that the officer or director is fairly and
reasonably entitled to indemnification in view of all the relevant circumstances. In addition, the Oregon Act and Section 6.6 of
our Bylaws provides that the indemnification described above is not exclusive of any other rights to which officers or directors
may be entitled under our Articles or Bylaws, or under any agreement, action of our board of directors, vote of shareholders or
otherwise.
As authorized by the Oregon Act, Article VII of our Articles limits
the personal liability of a director to the corporation or its shareholders for monetary damages for conduct as a director, except
that such a provision cannot affect the liability of a director (i) for any breach of the director's duty of loyalty to the corporation
or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) for any unlawful corporate distribution as defined in the Oregon Act or (iv) for any transaction from which the director
derived an improper personal benefit.
Section 6.2 of our Bylaws authorizes us, upon a determination that
indemnification is permissible in the circumstances, to indemnify all directors and officers against any liability incurred in
a proceeding in which the director or officer is a party, due to his or her status as a director or officer. However, indemnification
in connection with a proceeding by or in the right of the Company is limited to reasonable expenses in connection with the proceeding.
Indemnification of reasonable expenses is permissible in any proceeding in which a director or officer is wholly successful, on
the merits or otherwise, in the defense of the proceeding.
The Oregon Act and Section 6.4 of our Bylaws authorizes us to pay
for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of final disposition
of the proceeding if (i) the director furnishes the corporation a written affirmation of the director’s good faith belief
that the director has met the standard of conduct by the Oregon Act and (ii) the director furnishes a written undertaking, executed
personally or on the director’s behalf, to repay the advance if the director is ultimately determined not to have met the
standard of conduct.
We have an insurance policy covering our officers and directors
with respect to certain liabilities, including liabilities arising under the Securities Act, or otherwise.
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Item 7.
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Exemption From Registration Claimed.
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Not applicable.
The following exhibits are filed as part of this Registration
Statement:
(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:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of this 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 this 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;
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(iii)
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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;
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provided
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however
, that paragraphs (a)(1)(i)
and (a)(1)(ii) of this section 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 Exchange Act that are incorporated by reference in the Registration Statement.
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(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 related to the securities offered therein, and the offering of such securities at the
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.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
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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 Eugene, State of Oregon, on the 15
th
day of December, 2017.
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ARCIMOTO, INC.
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By:
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/s/ Mark Frohnmayer
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Mark Frohnmayer
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Chief Executive Officer
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and
appoints Mark Frohnmayer and Douglas Campoli, and each of his true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him and 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 file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, 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 by the following persons in the capacities and on the dates indicated.
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Signature
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Capacity
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Date
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/s/ Mark Frohnmayer
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President (principal executive officer) and Chairman of the Board of Directors
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December 15, 2017
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Mark Frohnmayer
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/s/ Douglas Campoli
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Chief Financial Officer (principal financial and accounting officer)
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December 15, 2017
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Douglas Campoli
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/s/ Terry Becker
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Chief Operating Officer and Director
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December 15, 2017
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Terry Becker
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/s/ Thomas Thurston
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Director
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December 15, 2017
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Thomas Thurston
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/s/ Jeff Curl
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Director
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December 15, 2017
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Jeff Curl
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