Securities Registration: Employee Benefit Plan (s-8)
June 30 2022 - 4:36PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on June 30, 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
Shift Technologies, Inc.
(Exact name of registrant as specified in its
charter)
Delaware |
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5500 |
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82-5325852 |
(State or other jurisdiction of
incorporation or organization) |
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(Primary Standard Industrial
Classification Code Number) |
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(IRS Employer
Identification No.) |
Shift Technologies, Inc. 2022 Employment Inducement Plan
(Full title of the plan)
290 Division Street, Suite 400
San Francisco, California 94103
(855) 575-6739
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Ryan Lawrence
Shift Technologies, Inc.
290 Division Street, Suite 400
San Francisco, California 94103
(855) 575-6739
(Name, address, including zip code, and telephone number, including area code, of agent for service)
with copies to:
Martin C. Glass
Jenner & Block LLP
1155 Avenue of the Americas
New York, NY 10036
(212) 891-1672
Indicate by check mark whether the registrant is
a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See
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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Non-accelerated filer |
☐ |
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Smaller reporting company |
☐ |
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Emerging growth company |
☒ |
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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. ☐
Explanatory Note
This Registration Statement on Form S-8 is being
filed for the purpose of registering an aggregate of 660,000 shares of Class A common stock, par value $0.0001 per share (the “Class
A common stock”), of Shift Technologies, Inc. (the “Registrant”), under the Registrant’s 2022 Employment Inducement Plan (the “Inducement Plan”).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Item 1 and Item 2
of Part I of Form S-8 is omitted from this Registration Statement in accordance with the provisions of Rule 428 under the Securities
Act and the introductory note to Part I of Form S-8.
The document(s) containing the information specified
in Part I will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act. Such documents are not required to
be, and are not, filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant
with the Securities and Exchange Commission (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, 2021, filed with the Commission on March 16, 2022. |
| (b) | The Amendment No. 1 to the Registrant’s Annual Report on Form 10-K/A for the year ended December 31, 2021, filed with the SEC on April 25. 2022. |
| (c) | The Registrant’s Quarterly Report on Form 10-Q for the quarter
ended March 31, 2022 filed with the SEC on May 10, 2022. |
| (d) | The Registrant’s Current Reports on Form 8-K filed with the Commission on January
12, 2022, February 24,
2022, March 15,
2022, May 6,
2022, May 13,
2022 and June 24, 2022. |
| (e) | The description of the Registrant’s Class A common stock contained
in the registration statement on Form 8-A filed on March 18, 2019 and any amendment or report
filed with the Commission for the purpose of updating the description. |
In addition, all documents filed by Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, (excluding any
portions thereof furnished by the Registrant, including but not limited to information furnished under Item 2.02 and Item 7.01 and any
exhibits relating to Item 2.02 or Item 7.01 furnished under Item 9.01 of Form 8-K and any certification required by 18 U.S.C. §
1350), on or after the date of this Registration Statement, 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 by reference
in this Registration Statement and to be a part hereof from the date of filing of such documents.
Any statement contained in this Registration Statement
or in a document incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained in this Registration Statement or in any subsequently filed document
that is deemed to be incorporated by reference in this Registration Statement 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(a) of the DGCL provides, in general,
that a corporation may indemnify any person who was or is a party to or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right
of the corporation), because he or she 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 the person in connection with such action, suit or proceeding, if he or she acted in good faith and in a manner he or she 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 or her conduct was unlawful.
Section 145(b) of the DGCL provides, in general,
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 because the 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 corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees) actually
and reasonably incurred by the person in connection with the defense or settlement of such action or suit if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, except that no
indemnification shall be made with respect to any claim, issue or matter as to which he or she shall have been adjudged to be liable
to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the
adjudication of liability but in view of all of the circumstances of the case, he or she is fairly and reasonably entitled to indemnity
for such expenses that the Court of Chancery or other adjudicating court shall deem proper.
Section 145(g) of the DGCL provides, in general,
that a corporation may purchase and maintain insurance on behalf of any person who 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 any liability asserted against such person and incurred by such person
in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify the
person against such liability under Section 145 of the DGCL.
Our Second Amended and Restated Certificate of
Incorporation provides that our directors shall not be personally liable to us or our stockholders for monetary damages for breach of
fiduciary duty as a director to the fullest extent permitted by the DGCL. Our Second Amended and Restated Bylaws provide for indemnification
of our directors and officers to the maximum extent permitted by applicable law.
The right to indemnification conferred by our
Second Amended and Restated Bylaws also includes the right to be paid the expenses (including attorneys’ fees) incurred by a present
or former director or officer in defending any civil, criminal, administrative, or investigative action, suit, or proceeding in advance
of its final disposition; provided, however, that if the Delaware law requires, an advancement of expenses incurred by a director or
officer in his or her capacity as a director or officer shall be made only upon the Company’s receipt of an undertaking by or on
behalf of such director or officer to repay all amounts so advanced if it shall ultimately be determined that such person is not entitled
to be indemnified for such expenses under our Second Amended and Restated Bylaws, or otherwise.
The Registrant also maintains a general liability
insurance policy, which will cover certain liabilities of directors and officers of the Registrant arising out of claims based on acts
or omissions in their capacities as directors or officers.
Item 7. Exemption from Registration Claims.
Not applicable.
Item
8. Exhibits.
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; |
| 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
hereof) 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 20% change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective registration statement |
| iv. | 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 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 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 the 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 in 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, 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 has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Francisco, State of California, on June 30, 2022.
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SHIFT TECHNOLOGIES, INC. |
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/s/ George Arison |
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George Arison |
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Chief Executive Officer and Chairman |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each
person whose signature appears below hereby constitutes and appoints George Arison and Oded Shein, 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 persons, hereby
ratifying and confirming all that each of said attorneys-in-fact and agents, or his or her substitute or substitutes may lawfully do
or cause to be done by virtue hereof.
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 and on the dates
indicated.
/s/ George Arison |
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Chief Executive Officer and Chairman of the Board of Directors |
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June 30, 2022 |
George Arison |
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(principal executive officer) |
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/s/ Oded Shein |
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Chief Financial Officer (principal financial officer and |
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June 30, 2022 |
Oded Shein |
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principal accounting officer) |
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/s/ Toby Russell |
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Director |
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June 30, 2022 |
Toby Russell |
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/s/ Victoria McInnis |
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Director |
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June 30, 2022 |
Victoria McInnis |
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/s/ Kellyn Smith Kenny |
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Director |
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June 30, 2022 |
Kellyn Smith Kenny |
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/s/ Jason Krikorian |
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Director |
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June 30, 2022 |
Jason Krikorian |
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/s/ Emily Melton |
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Director |
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June 30, 2022 |
Emily Melton |
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/s/ Adam Nash |
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Director |
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June 30, 2022 |
Adam Nash |
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/s/ Manish Patel |
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Director |
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June 30, 2022 |
Manish Patel |
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