UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WORKHORSE
GROUP INC.
| (Exact
name of registrant as specified in its charter) |
| Nevada |
|
26-1394771 |
(State
or other jurisdiction of
incorporation
or organization)
|
|
(I.R.S.
Employer
Identification
No.) |
3600
Park 42 Drive, Suite 160E, Sharonville, Ohio 45241
| (Address
of Principal Executive Offices) (Zip Code) |
Workhorse
Group Inc. 2023 Long-Term Incentive Plan
James
D. Harrington
General Counsel, Chief Compliance Officer and Secretary
Workhorse Group Inc.
3600
Park 42 Drive, Suite 160E
Sharonville, Ohio 45241
(513)
360-4704
| (Name,
Address and Telephone Number, Including Area Code, of agent for service) |
Copy
to:
Jodi
A. Simala
Mayer
Brown LLP
71
South Wacker Drive
Chicago,
IL 60606-4637
(312)
782-0600
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. ☐
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information
required by Part I of Form S-8 is omitted from this Registration Statement (this “Registration Statement”) in accordance
with Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”) and the “Note” to Part I of
Form S-8. The documents containing the information specified in Part I of Form S-8 will be sent or given to participants in the Workhorse
Group Inc. 2023 Long-Term Incentive Plan (the “Plan”) as required by Rule 428(b)(1) under the Securities Act.
Upon written or oral request,
any of the documents incorporated by reference in Item 3 of Part II of this Registration Statement, which are also incorporated by reference
in the Section 10(a) prospectus, other documents required to be delivered to eligible participants pursuant to Rule 428(b) promulgated
under the Securities Act, or additional information about the Plan, will be available without charge by contacting Workhorse Group
Inc. Legal Department at 3600 Park 42 Drive, Suite 160E, Sharonville, Ohio 45241, telephone: (513) 360-4704.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The following
documents, which were previously filed by Workhorse Group Inc., a company incorporated under the laws of Nevada (the “Registrant”),
with the Securities and Exchange Commission (the “Commission”), are incorporated by reference herein and shall be deemed
to be part hereof (File No. 001-37673):
| (a) | The
Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022,
filed pursuant to Section 13(a) of the Securities and Exchange Act of 1934 (the “Exchange
Act”); |
| (c) | The
Registrant’s Current Reports on Form 8-K filed February 2, 2023, April 26, 2023, May 1, 2023, May 5, 2023, June 28, 2023, July 12, 2023, July 25, 2023, September 1, 2023, September 6, 2023, September 13, 2023 September 22, 2023, and September 26, 2023; |
| (d) | The
description of the Registrant’s common stock, par value, $0.001 per share, as
set forth in Exhibit 4.12 of Registrant’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2022 (as incorporated by reference to Exhibit 4.12 of the Registrant’s
Annual Report for the fiscal year ended December 31, 2020), including any amendment or report
filed for the purpose of updating such description. |
All documents
subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated herein by reference and shall be deemed a part hereof from the date of filing of such documents (other than
information deemed furnished and not filed under the rules of the Commission, unless otherwise expressly stated therein).
For purposes
of this Registration Statement, any document or any statement contained in a document incorporated or deemed to be incorporated herein
by reference shall be deemed to be modified or superseded to the extent that a subsequently filed document or a statement contained herein
or in any other subsequently filed document which also is or is deemed to be incorporated herein by reference modifies or supersedes
such document or such statement in such document. 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.
Under the
Nevada Revised Statute (the “NRS”) a corporation:
| ● | shall
indemnify a director or officer against expenses, including attorneys’ fees, actually
and reasonably incurred by him or her, to the extent the director or officer has been successful
on the merits or otherwise in defense of any action, suit or proceeding; and |
| ● | may
indemnify a director or officer who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that person is or was a director or
officer against expenses, including attorneys’ fees, judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or her in connection with the action,
suit or proceeding, unless: |
| o | the
director’s or officer’s act or failure to act constitutes a breach of his or
her fiduciary duties as a director or officer and his or her breach of those duties involves
intentional misconduct, fraud or a knowing violation of law; or |
| o | the
director or officer did not act in good faith and in a manner that they reasonably believed
to be in or not opposed to the best interests of the corporation, and, regarding any criminal
action or proceeding, had reasonable cause to believe the conduct was unlawful. |
Further,
the NRS allows for discretionary indemnification of directors and officers upon a determination that the indemnification of such director
or officer is proper under the circumstances, with such determination made by:
| ● | The
board of directors, by majority vote of a quorum consisting of directors who were not parties
to the action, suit or proceeding; or |
| ● | Independent
legal counsel, in a written opinion, if: (a) a majority vote of a quorum consisting of directors
who were not parties to the action, suit or proceeding so orders; or (b) a quorum consisting
of directors who were not parties to the action, suit or proceeding cannot be obtained. |
The NRS asserts
that discretionary indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court
of competent jurisdiction, after exhaustion of any appeals taken therefrom, to be liable to the corporation or for amounts paid in settlement
to the corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent
jurisdiction determines upon application that in view of all the circumstances of the case, the person is fairly and reasonably entitled
to indemnity for such expenses.
The Registrant’s
Second Amended and Restated Bylaws include an indemnification provision under which the Registrant indemnifies directors and officers
against expenses, including attorney’s fees, in each case to the fullest extent permissible under the NRS, provide for advancement
of expenses and empower the Registrant to purchase and maintain indemnification insurance.
The Registrant
maintains an insurance policy which indemnifies its officers and directors against certain liabilities. In addition, the Registrant has
entered into indemnification agreements with certain of its directors pursuant to which the Registrant promises to indemnify the signatories
as permitted by the laws of the State of Nevada and advance all expenses in connection with a proceeding (or for a witness).
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
EXHIBIT
INDEX
Item
9. Undertakings.
1. The undersigned Registrant hereby undertakes:
(a) 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)
(§230.424(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.
(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 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.
(b)
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.
(c) 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.
2. 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 herein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof.
3.
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 City of Sharonville, State of Ohio on October 13, 2023.
| |
WORKHORSE GROUP INC. |
| |
|
| |
By: |
/s/ Richard Dauch |
| |
Name: |
Richard Dauch |
| |
Title: |
Chief Executive Officer and President |
| |
|
(Principal Executive Officer) |
POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints each of Richard Dauch and James Harrington as such person’s true
and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and all other documents in connection therewith, and to file the same, with
all exhibits thereto, with the Securities and Exchange Commission.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities
indicated on October 13, 2023.
| /s/ Richard Dauch |
|
Chief Executive Officer, President and Director |
| Richard Dauch |
|
(Principal Executive Officer) |
| |
|
|
| /s/ Robert M. Ginnan |
|
Chief Financial Officer |
| Robert M. Ginnan |
|
(Principal Financial Officer and Principal Accounting Officer) |
| |
|
|
| /s/ Raymond J. Chess |
|
Director |
| Raymond J. Chess |
|
|
| |
|
|
| /s/
Jacqueline A. Dedo |
|
Director |
| Jacqueline A. Dedo |
|
|
| |
|
|
| /s/ Pamela S. Mader |
|
Director |
| Pamela S. Mader |
|
|
| |
|
|
| /s/ William
G. Quigley III |
|
Director |
| William G. Quigley III |
|
|
| |
|
|
| /s/ Austin Scott Miller |
|
Director |
| Austin Scott Miller |
|
|
| |
|
|
| /s/ Brandon Torres Declet |
|
Director |
| Brandon Torres Declet |
|
|
| |
|
|
| /s/ Dr. Jean Botti |
|
Director |
| Dr. Jean Botti |
|
|
6
Exhibit 5.1
|
50 West Liberty Street, Suite 750
Reno, Nevada 89501
Main 775.323.1601
Fax 775.348.7250 |
A Professional
Law Corporation
|
|
October
13, 2023
Workhorse Group Inc.
3600 Park 42 Drive
Suite 160E
Sharonville, Ohio 45241
Gentlemen:
We
refer to the Registration Statement on Form S-8 (the “Registration Statement”) filed with the U.S. Securities and Exchange
Commission (“SEC”) to be filed on even date by Workhorse Group, a Nevada corporation (the “Company”), with the
SEC with respect to the registration of up to an aggregate of 4,500,000 shares of the Company’s common stock, par value $0.001
per share (the “Common Stock”), to be issued in connection with the Company’s 2023 Long-Term Incentive Plan (the “Plan”).
As
counsel to the Company, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of
this letter. With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual
matters without having independently verified such factual matters. We are opining herein as to the Nevada Revised Statutes, and we express
no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or, in the case of
Nevada, any other laws, or as to any matters of municipal law or the laws of any local agencies within any state.
We
have made such examination as we have deemed necessary for the purpose of this opinion. Based upon such examination, it is
our opinion, that, when the Registration Statement has become effective under the Securities Act of 1933, as amended, and when the shares
of Common Stock to be issued are sold and paid for in the manner described in the Plan, the Common Stock so issued will be validly issued,
fully paid and non-assessable. No opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement
or the Plan. In connection with this opinion, we have examined and relied on the representations and warranties as to factual matters
in the Registration Statement. Our knowledge of the Company and its legal and other affairs is limited by the scope of our engagement,
which scope includes the delivery of this opinion letter. We do not represent the Company with respect to all legal matters or issues.
The Company may employ other independent counsel and, to our knowledge, handles certain matters and issues without the assistance of
independent counsel.
This
opinion is given as of the date hereof and we assume no obligation to advise you of changes that may hereafter be brought to our attention.
We
hereby consent to the use of this opinion as an exhibit to the Registration Statement.
| |
Very
truly yours, |
| |
|
| |
PARSONS
BEHLE & LATIMER |
| |
|
| |
/s/ Parsons Behle & Latimer |
Exhibit 23.2
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
have issued our report dated March 1, 2023 with respect to the consolidated financial statements of Workhorse Group Inc. included in
the Annual Report on Form 10-K for the year ended December 31, 2022, which is 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
Cincinnati,
Ohio
October
13, 2023
Exhibit
107.1
Calculation
of Filing Fee Tables
Form
S-8
(Form
Type)
Workhorse
Group Inc.
(Exact
Name of Registrant as Specified in its Charter)
Newly
Registered Securities
CALCULATION
OF REGISTRATION FEE
Security
Type | |
Title
of
Securities
to be
Registered | |
Fee
Calculation
Rule | |
Amount
to be
Registered(1) | | |
Proposed
Maximum
Offering
Price
Per Share(2) | | |
Maximum
Aggregate
Offering Price | | |
Fee
Rate | | |
Amount
of
Registration Fee | |
| Equity | |
Common
Stock, par value of $0.001 per share | |
Rule
457(c) and Rule 457(h) | |
| 4,500,000 | | |
$ | 0.3973 | | |
$ | 1,787,850.00 | | |
| 0.00014760 | | |
$ | 263.89 | |
| | |
Total
Offering Amounts | | |
$ | 1,787,850.00 | | |
| | | |
$ | 263.89 | |
| | |
Total
Fee Offsets | | |
| | | |
| | | |
| | |
| | |
Net
Fee Due | | |
| | | |
| | | |
$ | 263.89 | |
| (1) | Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also
cover any additional shares of common stock that may become issuable by reason of any stock dividend, stock split, combination of shares
or recapitalization or other increase or reduction of the number of shares or other similar transaction effected that results in an increase
in the number of outstanding shares of common stock. |
| (2) | Estimated
solely for the purpose of computing the registration fee pursuant to Rule 457(h) and 457(c) under the Securities Act of 1933 on the basis
of the average of the high and low prices of the Common Shares reported on the NASDAQ Capital Market on October 9, 2023, which is within
five business days of the filing of the Registration Statement. |
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