As
filed with the Securities and Exchange Commission on August 30, 2023
Registration
No. 333-268784
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DRAGONFLY
ENERGY HOLDINGS CORP.
(Exact
name of registrant as specified in its charter)
| Nevada |
|
85-1873463 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(I.R.S.
Employer
Identification
No.) |
| |
|
|
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 plan)
Denis
Phares
Chief
Executive Officer
Dragonfly
Energy Holdings Corp.
1190
Trademark Drive, #108
Reno,
Nevada 89521
(Name
and address of agent for service)
Tel:
(775) 662 - 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, New York 10020
Tel:
(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 |
☐ |
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
December 13, 2022, Dragonfly Energy Holdings Corp., a Delaware corporation (“Dragonfly Delaware”), filed a Registration
Statement on Form S-8 (File No. 333-268784) (the “Registration Statement”).
This
Post-Effective Amendment No. 1 (this “Post-Effective Amendment”) to the Registration Statement is being filed pursuant
to Rule 414 under the Securities Act of 1933, as amended (the “Securities Act”), by Dragonfly Energy Holdings Corp.,
a Nevada corporation (“Dragonfly Nevada” or the “Company”). Dragonfly Nevada is the successor to Dragonfly
Delaware following a reincorporation by conversion (the “Reincorporation”) on March 31, 2023. The Reincorporation
was effected by a Plan of Conversion, which provided that the Company: (1) file with the Secretary of State of the State of Delaware
a Certificate of Conversion, and (2) file with the Secretary of State of the State of Nevada (i) Articles of Conversion, and (ii) Articles
of Incorporation.
The
Reincorporation was approved by securityholders pursuant to which proxies were solicited pursuant to Section 14(a) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”). As a result of the Reincorporation, pursuant to the Nevada
Revised Statutes (the “NRS”), the Company has continued its existence under the NRS as a corporation incorporated
in the State of Nevada. The business, assets and liabilities of the Company and its subsidiary on a consolidated basis, as well as its
principal locations and fiscal year, were the same immediately after the Reincorporation as they were immediately prior to the Reincorporation.
In addition, the directors and executive officers of the Company immediately after the Reincorporation were the same individuals who
were directors and executive officers, respectively, of the Company immediately prior to the Reincorporation.
Following
the Reincorporation, (i) all issued and outstanding shares of common stock of Dragonfly Delaware were automatically converted into issued
and outstanding shares of common stock of Dragonfly Nevada, without any action on the part of the Company’s stockholders, and (ii)
each outstanding option or warrant to purchase a share of Dragonfly Delaware common stock (collectively, the “Dragonfly Delaware
Stock”), and other equity awards relating to Dragonfly Delaware Stock, was deemed to constitute an option or warrant to purchase
one share of common stock or equity award, as applicable, of Dragonfly Nevada at an exercise price per full share equal to the stated
exercise price or other terms or provisions of the option, warrant or equity award.
In
accordance with Rule 414(d) of the Securities Act, Dragonfly Nevada, as successor issuer to Dragonfly Delaware, hereby expressly adopts
the Registration Statement as its own for all purposes under the Securities Act and the Exchange Act.
No
additional securities are being registered under this Post-Effective Amendment. All applicable registration and filing fees were paid
at the time of the original filing of the Registration Statement.
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 Annual Report on Form 10-K for the year ended December 31, 2022 (the “10-K”)
filed with the SEC on April 17, 2023, as amended on May 1, 2023; |
| ● | the
Company’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023 and
June 30, 2023, filed with the SEC on May 15, 2023 and August 21, 2023, respectively; |
| ● | the
Company’s Current Reports on Form 8-K filed with the SEC on March
2, 2023, March
9, 2023, March
29, 2023, March
31, 2023, May
1, 2023, and June
21, 2023 (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); 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 Post-Effective
Amendment 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 Post-Effective Amendment
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 Post-Effective Amendment 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. | Limitation
on Liability and Indemnification of Directors and Officers. |
Neither
our Articles of Incorporation nor our Bylaws prevent us from indemnifying our officers, directors and agents to the extent permitted
under the Nevada Revised Statutes, as amended (the “NRS”). NRS Section 78.751 provides that a corporation shall indemnify
any director, officer, employee or agent of a corporation against expenses, including attorneys’ fees, actually and reasonably
incurred by him in connection with any the defense to the extent that a director, officer, employee or agent of a corporation has been
successful on the merits or otherwise in defense of any action, suit or proceeding, including, without limitation, those referred
to in Section 78.7502(1) or 78.7502(2), or in defense of any claim, issue or matter therein.
NRS
Section 78.7502(1) provides that a corporation 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, whether civil, criminal, administrative or investigative, except an
action by or in the right of the corporation, by reason of the fact that he 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 corporation, partnership,
joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with the action, suit or proceeding if he: (a) is not liable pursuant to NRS Section
78.138; or (b) acted in good faith and in a manner which he 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 his conduct was unlawful.
NRS
Section 78.7502(2) provides that a corporation 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 or suit by or in the right of the corporation to procure a judgment in its favor, by reason
of the fact that he 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 corporation, partnership, joint venture, trust or other enterprise against expenses,
including amounts paid in settlement and attorneys’ fees actually and reasonably incurred by him in connection with the defense
or settlement of the action or suit if he: (a) is not liable pursuant to NRS Section 78.138; or (b) acted in good faith and in a manner
which he reasonably believed to be in or not opposed to the best interests of the corporation. 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 all appeals
there from, 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 as the court deems proper.
NRS
Section 78.747 provides that except as otherwise provided by specific statute or agreement, no person other than a corporation is individually
liable for a debt or liability of the corporation, unless the person acts as the alter ego of the corporation. The court as a matter
of law must determine the question of whether the person acts as the alter ego of a corporation.
Insofar
as indemnification for liabilities arising under the Securities Act, may be permitted to directors, officers or controlling persons of
ours, pursuant to the foregoing provisions, or otherwise, we have been informed that, in the opinion of the SEC, 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 a director, officer or controlling
person in connection with the securities being registered, we 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 is against public policy
as expressed hereby in the Securities Act and we will be governed by the final adjudication of such issue.
In
addition, we have entered into indemnification agreements with each of our directors and executive officers. These agreements, among
other things, require us to indemnify our directors and executive officers for certain expenses, including attorneys’ fees, judgments
and fines incurred by a director or executive officer in any action or proceeding arising out of their services as one of our directors
or executive officers or any other company or enterprise to which the person provides services at our request.
| Item
7. | Exemption
from Registration Claimed. |
Not
applicable.
(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 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; and
(iii)
to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement
or any material change to such information in this 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.
(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 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.
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 Post-Effective Amendment No. 1 to the
Registration Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Reno,
State of Nevada, on August 30, 2023.
| |
Dragonfly
Energy Holdings Corp. |
| |
|
|
| |
By: |
/s/
Denis Phares |
| |
|
Denis
Phares
President,
Chief Executive Officer and interim Chief Financial Officer |
Pursuant
to the requirements of the Securities Act of 1933, this Post-Effective Amendment No. 1 to the Registration Statement on Form S-8 has
been signed by the following persons in the capacities and on the date indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/
Denis Phares |
|
Chairman,
President, Chief Executive Officer and interim Chief Financial Officer
|
|
August
30, 2023 |
| Denis
Phares |
|
(Principal
Executive Officer)
(Principal
Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| * |
|
Director |
|
August
30, 2023 |
| Luisa
Ingargiola |
|
|
|
|
| |
|
|
|
|
| * |
|
Director |
|
August
30, 2023 |
| Brian
Nelson |
|
|
|
|
| |
|
|
|
|
| * |
|
Director |
|
August
30, 2023 |
| Perry
Boyle |
|
|
|
|
| |
|
|
|
|
| * |
|
Director |
|
August
30, 2023 |
| Jonathan
Bellows |
|
|
|
|
| |
|
|
|
|
| * |
|
Director |
|
August
30, 2023 |
| Rick
Parod |
|
|
|
|
| |
|
|
|
|
| * |
|
Director |
|
August
30, 2023 |
| Karina
Montilla Edmonds |
|
|
|
|
| *By: |
/s/
Denis Phares |
|
|
|
Denis
Phares |
|
| |
Attorney-in-Fact |
|
Exhibit
5.1
August
30, 2023
Board
of Directors
Dragonfly
Energy Holdings Corp.
1190
Trademark Drive #108
Reno,
NV 89521
| |
Re:
Dragonfly Energy Holdings Corp. – |
Post-Effective
Amendment No. 1 to |
| |
|
Registration
Statement on Form S-8 |
Ladies
and Gentlemen:
We
have acted as special Nevada counsel to Dragonfly Energy Holdings Corp., a Nevada corporation (the “Company”), in
connection with the Post-Effective Amendment No. 1 (the “POS AM”) to the Registration Statement on Form S-8 (File
No. 333-268784) dated December 13, 2022 (the “Registration Statement”) previously filed by Dragonfly Energy Holdings
Corp., a Delaware corporation (“Dragonfly Delaware”), filed by the Company with the Securities and Exchange Commission
on the date hereof relating to the registration of shares of the Company’s common stock, $0.0001 par value per share (the “Common
Stock”), issuable pursuant to the Company’s 2022 Equity Incentive Plan (the “2022 Plan”), the Company’s
2021 Stock Incentive Plan (the “2021 Plan”), the Company’s 2019 Stock Incentive Plan (the “2019 Plan”),
or the Company’s Employee Stock Purchase Plan (the “ESPP” and, collectively with the 2022 Plan, 2021 Plan and
2019 Plan, the “Plans”).
The
Company is the successor to Dragonfly Delaware following a conversion (the “Conversion”) on March 31, 2023. The Conversion
was effected by a Plan of Conversion, which provided that the Company: (1) file with the Secretary of State of the State of Delaware
a Certificate of Conversion, and (2) file with the Secretary of State of the State of Nevada (i) Articles of Conversion, and (ii) Articles
of Incorporation.
Following
the Conversion, (i) all issued and outstanding shares of common stock of Dragonfly Delaware were automatically converted into issued
and outstanding shares of Common Stock of Company (the, without any action on the part of the Company’s stockholders, and (ii)
each outstanding option or warrant to purchase a share of Dragonfly Delaware common stock (collectively, the “Dragonfly Delaware
Stock”), and other equity awards relating to Dragonfly Delaware Stock, was deemed to constitute an option or warrant to purchase
one share of Common Stock or equity award, as applicable, of the Company at an exercise price per full share equal to the stated exercise
price or other terms or provisions of the option, warrant or equity award.
We
are rendering this opinion in connection with the POS AM registering a total of 2,163,636 shares of Common Stock comprised of: (i) 2,605,950
shares (the “Available Shares”) of Common Stock, issuable pursuant to the 2022 Plan; (ii) 1,755,935 shares (the “2021
Option Shares”) of Common Stock subject to outstanding stock options under the 2021 Plan; (iii) 3,177,632 shares (the “2019
Option Shares”) of Common Stock subject to outstanding stock options under the 2019 Plan; and (iv) 2,464,400 shares (the “ESPP
Shares” and, collectively with the Available Shares, the 2021 Option Shares and the 2019 Option Shares, the “Shares”)
of Common Stock issuable pursuant to the ESPP.
Dragonfly
Energy Holdings Corp.
August
30, 2023
Page
Two
As
counsel to the Company in connection with the POS AM, we have reviewed the POS AM, the Registration Statement, the Plans, the Company’s
Articles of Incorporation and the Company’s Bylaws. In addition, we have examined such matters of fact and questions of law as
we have considered appropriate for purposes of rendering this opinion. 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.
Based
upon such examination, it is our opinion that the Shares have been duly authorized by all requisite corporate action on the part of the
Company and, upon their issuance, delivery and payment therefor in accordance with the terms of the Plans and in the manner contemplated
by the POS AM, the Shares will be validly issued, fully paid and non-assessable.
No
opinion is expressed herein as to any matter pertaining to the contents of the POS AM. In connection with this opinion, we have relied
on oral or written statements and representations of officers or other representatives of the Company and others. 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. We assume no obligation to advise you of changes that may hereafter be brought to our attention.
We
consent to the inclusion of this opinion as an exhibit to the POS AM and further consent to all references to us under the caption “Legal
Matters” in the Prospectus constituting a part of the POS AM. In giving this consent, we do not admit that we are in the category
of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Securities and Exchange
Commission.
| |
Very
truly yours, |
| |
|
| |
/s/
PARSONS BEHLE & LATIMER |
Exhibit
23.1
Consent
of Independent Registered Public Accounting Firm
Dragonfly
Energy Holdings Corp.
Reno,
Nevada
We
hereby consent to the incorporation by reference in the Form S-8/A constituting a part of this Registration Statement of our report
dated April 17, 2023, relating to the consolidated financial statements of Dragonfly Energy Holdings Corp., appearing in the Company’s
Annual Report on Form 10-K for the year ended December 31, 2022. Our report contains an explanatory paragraph regarding the Company’s
ability to continue as a going concern.
/s/
BDO USA, P.C.
Spokane,
Washington
August
30, 2023
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