Securities Registration: Employee Benefit Plan (s-8)
December 13 2022 - 5:31PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on December 13, 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
Dragonfly Energy Holdings Corp.
(Exact name of registrant as specified in its
charter)
Delaware |
|
99-0360497 |
(State or other jurisdiction
of incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
Dragonfly Energy Holdings Corp.
1190 Trademark Drive #108
Reno, Nevada 89521
(Address of Principal Executive Offices) (Zip
Code)
Dragonfly Energy Holdings Corp. 2022 Equity
Inventive Plan
Dragonfly Energy Corp. 2021 Stock Incentive Plan
Dragonfly Energy Corp. 2019 Stock Incentive
Plan
Dragonfly Energy Holdings Corp. Employee Stock
Purchase Plan
(Full title of the plans)
Nicole Harvey
Chief Legal Officer
Dragonfly Energy Holdings Corp.
1109 Trademark Drive #108
Reno, Nevada 89521
(Name and address of agent for service)
(775) 622-3448
(Telephone number, including
area code, of agent for service)
Please send copies of all communications
to:
Steven M. Skolnick, Esq.
Lowenstein Sandler LLP
1251 Avenue of the Americas
New York, NY 10020
(212) 262-6700
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 |
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Accelerated filer |
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¨ |
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Non-accelerated filer |
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x |
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Smaller reporting company |
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x |
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Emerging growth company |
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x |
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
Item 1. Plan Information.
The information called for by Part I of Form S-8
is omitted from this Registration Statement on Form S-8 (the “Registration Statement”) and has been or will be
sent or given to participating service providers in accordance with Rule 428 of the Securities Act of 1933, as amended (the “Securities
Act”), and the instructions to Form S-8. In accordance with the rules and regulations of the Securities and Exchange
Commission (the “Commission”) and the instructions to Form S-8, such documents are not being filed with the Commission
either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities
Act.
Item 2. Registrant Information and Employee
Plan Annual Information.
Dragonfly Energy Holdings Corp. (the “Company”
or the “Registrant”) will furnish without charge to each person to whom the prospectus is delivered, upon the written
or oral request of such person, a copy of any and all of the documents incorporated by reference into this Registration Statement pursuant
to Item 3 of Part II hereof, other than exhibits to such documents (unless such exhibits are specifically incorporated by reference
in such documents that are incorporated), and the other documents required to be delivered to eligible participants in the Plans pursuant
to Rule 428(b) under the Securities Act. Those documents are incorporated by reference in the Section 10(a) prospectuses.
Requests should be directed to:
Dragonfly Energy Holdings Corp.
1109 Trademark Drive #108
Reno, Nevada 89521
Attention: Chief Legal Officer
Tel: (775) 622-3448
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with
the Commission pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
are incorporated herein by reference:
| · | the Company’s Current
Reports on Form 8-K filed on May 16, 2022, July 12, 2022, August 5, 2022, August 8, 2022, September 6, 2022, September 29, 2022, October 3, 2022, October 5, 2022, October 7, 2022, October 11, 2022 (as amended by
the Form 8-K/As filed on October 13, 2022 and November 14, 2022), October 11, 2022, and November 4, 2022 (in
each case, excluding any information deemed furnished under Items 2.02 or 7.01 of Form 8-K, including the related exhibits, which
information is not incorporated by reference herein); |
| | |
| · | the Company’s Registration Statement on Form S-4 (File No. 333-266273) filed on July 22, 2022 (as amended by the Form S-4/As filed on
August 12, 2022, September 1, 2022, September 13, 2022 and September 14, 2022); and |
All documents filed by the Company 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 contained in any subsequently filed document, which also is deemed to be incorporated by reference
herein, modifies or supersedes such 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, in general, that a corporation incorporated under the laws of the State of Delaware, as
we are, may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (other than a derivative action by or in the right of the corporation) by reason of the fact that such person is or
was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to
any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. In the case of a derivative
action, a Delaware corporation may indemnify any such person against expenses (including attorneys’ fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in
a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification
will be made in respect of any claim, issue or matter as to which such person will have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery of the State of Delaware or any other court in which such action was brought
determines such person is fairly and reasonably entitled to indemnity for such expenses.
As permitted by the DGCL, our amended and restated
certificate of incorporation (the “Charter”) contains provisions that eliminate the personal liability of our directors
for monetary damages for any breach of fiduciary duties as a director, except liability for the following:
| · | any breach of the director’s duty of loyalty to the Company or its stockholders; |
| · | acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; |
| · | under Section 174 of the DGCL (regarding unlawful dividends and stock purchases); or |
| · | any transaction from which the director derived an improper personal benefit. |
Our Charter and amended and restated bylaws provide
that we will indemnify our directors, officers, employees and agents to the extent and in the manner permitted by the provisions of the
DGCL, as amended from time to time, subject to any permissible expansion or limitation of such indemnification, as may be set forth in
any amendment by stockholders or directors resolution. Any repeal or modification of these provisions approved by our stockholders will
be prospective only and will not adversely affect any limitation on the liability of any of our directors or officers existing as of the
time of such repeal or modification.
We have director and officer liability insurance
to cover certain liabilities of directors and officers of our Company arising out of claims based on acts or omissions in their capacities
as directors or officers.
We have entered into indemnification agreements
with each of our directors and executive officers whereby we have agreed to indemnify those directors and officers to the fullest extent
permitted by law, including indemnification against expenses and liabilities incurred in legal proceedings to which the director or officer
was, or is threatened to be made, a party by reason of the fact that such director or officer is or was a director, officer, employee
or agent of the Company provided that such director or officer acted in good faith and in a manner that the director or officer reasonably
believed to be in, or not opposed to, the best interests of the Company.
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or
otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
For a list of exhibits, see the Exhibit Index in this Registration
Statement, which is incorporated into this Item by reference.
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 of 1933, as amended (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 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; 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 clauses (A)(1)(i) and (A)(1)(ii) above shall not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic 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 this 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; and
(3) to
remove from registration by means of a post-effective amendment any of the securities being registered that 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 into this 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 hereby, 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
* Filed
herewith.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, 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 Reno, Nevada, on December 13, 2022.
| | DRAGONFLY ENERGY HOLDINGS CORP. |
| | |
| | By: |
/s/ Denis Phares |
| | |
Name: |
Denis Phares |
| | |
Title: |
Chairman, President and Chief Executive
Officer |
POWER OF ATTORNEY
Each of the undersigned, whose signature appears
below, hereby constitutes and appoints Denis Phares and Nicole Harvey, and each of them, his or her true and lawful attorney-in-fact and
agent, with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities,
to sign any or all 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 attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing necessary or appropriate to be done with respect to this registration statement or any amendments
hereto in the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them, or his or their substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities indicated:
Signature |
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Title |
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Date |
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/s/ Denis Phares
Denis Phares |
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Chairman, President and Chief Executive Officer
(Principal Executive Officer) |
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December 13, 2022 |
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/s/ John Marchetti
John Marchetti |
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Chief Financial Officer
(Principal Financial and Accounting Officer) |
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December 13, 2022 |
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/s/ Luisa Ingargiola
Luisa Ingargiola |
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Director |
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December 13, 2022 |
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/s/ Brian Nelson |
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Director |
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December 13, 2022 |
Brian Nelson |
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/s/ Perry Boyle
Perry Boyle |
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Director |
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December 13, 2022 |
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/s/ Jonathan Bellows
Jonathan Bellows |
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Director |
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December 13,
2022 |
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/s/ Rick Parod
Rick Parod |
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Director |
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December 13, 2022 |
/s/ Karina Edmonds
Karina Edmonds |
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Director |
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December 13, 2022 |
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