As filed with the Securities and Exchange Commission
on July 14, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Phoenix
Motor Inc.
(Exact name of registrant as specified in its
charter)
| Delaware |
|
85-4319789 |
(State or other jurisdiction
of
incorporation or organization) |
|
(I.R.S. Employer
Identification Number) |
1500 Lakeview Loop
Anaheim, California 92807
Telephone: (909) 987-0815
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Chris Wang
Chief Financial Officer
1500 Lakeview Loop
Anaheim, California 92807
Telephone: (909) 987-0815
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy
to:
Mitchell S. Nussbaum
David J. Levine
Loeb & Loeb LLP
345 Park Avenue
New York, New York 10154
Telephone: (212) 407-4000
Approximate date of commencement of proposed
sale to the public:
From time to time after this Registration Statement becomes effective.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box. ¨
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box. x
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. ¨
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box
and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. ¨
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 |
x |
Smaller reporting company |
x |
| |
|
Emerging growth company |
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 Securities Act. ¨
The Registrant hereby amends this Registration
Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the Securities and Exchange
Commission, acting pursuant to said Section 8(a), may determine.
The information in this preliminary
prospectus is not complete and may be changed. The securities may not be sold until the registration statement filed with the Securities
and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities and is not soliciting an offer
to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED
JULY 14, 2023
PRELIMINARY PROSPECTUS
Phoenix Motor
Inc.
$25,000,000
Common Stock
Preferred Stock
Warrants
Units
We may offer and sell, from
time to time in one or more offerings, any combination of common stock, preferred stock, warrants or units having a maximum aggregate
offering price of $25,000,000. When we decide to sell a particular class or series of securities, we will provide specific terms of the
offered securities in a prospectus supplement.
This prospectus provides
a general description of the securities that we may offer. Each time any securities are offered pursuant to this prospectus, we will
provide specific information about the offered securities in one or more supplements to this prospectus.
Prospectus supplements may
also add, update or change information in this prospectus. If the information varies between this prospectus and any accompanying prospectus
supplement, you should rely on the information in the prospectus supplement.
Our common stock is listed
on the Nasdaq Capital Market under the symbol “PEV.” On July 13, 2023, the last reported sales price of our common stock was
$0.75 per share. Any prospectus supplement will indicate if the securities offered thereby will be listed on any securities exchange.
As of July 13, 2023, the aggregate
market value of our outstanding common stock held by non-affiliates, or public float, was approximately $2,603,943, based on 21,291,924
shares of outstanding common stock, of which approximately 3,471,924 shares were held by non-affiliates, and a price of $0.75 per share,
which was the price at which our common stock was last sold on the Nasdaq Capital Market on such date. We have not offered any securities
pursuant to General Instruction I.B.6 of Form S-3 during the prior 12-calendar-month period that ends on and includes the date of
this prospectus. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities registered on this registration
statement in a public primary offering with a value exceeding more than one-third of our public float in any 12-month period so long as
our public float remains below $75 million (the “Baby Shelf Limitation”).
We are an “emerging
growth company” as defined under U.S. federal securities laws and, as such, have elected to comply with reduced public company
reporting requirements. This prospectus complies with the requirements that apply to an issuer that is an emerging growth company.
The securities covered by
this prospectus may be sold directly by us to investors, through agents designated by us from time to time or through underwriters or
dealers at prices and on terms to be determined at the time of offering. We will include in an applicable prospectus supplement the names
of any underwriters or agents and any applicable commissions or discounts. Additional information on the methods of sale appears under
“Plan of Distribution” in this prospectus. We will also describe in an applicable prospectus supplement the way(s) in
which we expect to use the net proceeds we receive from any sale.
You should carefully read
this prospectus and any applicable prospectus supplement, together with the documents we incorporate by reference, before you invest
in our securities. This prospectus may not be used to offer and sell our securities unless accompanied by a prospectus supplement describing
the method and terms of the offering.
Investing in any of our
securities involves a high degree of risk. Please read carefully the section entitled “Risk Factors” on page 7 of
this prospectus and the “Risk Factors” section contained in any applicable prospectus supplement and in the documents incorporated
by reference in this prospectus before investing in our securities.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus
is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is ,
2023
TABLE OF CONTENTS
About
This Prospectus
This prospectus is part of
a registration statement on Form S-3 that we filed with the Securities and Exchange Commission (the “SEC”) using a “shelf”
registration process. Under this shelf registration process, we may, from time to time, sell any combination of the securities described
in this prospectus in one or more offerings. Under this process, we may sell the securities described in this prospectus in one or more
offerings for an aggregate offering amount of up to $25,000,000, subject to the Baby Shelf Limitation.
This prospectus provides
you with a general description of the securities that may be offered pursuant to the registration statement of which this prospectus
forms a part. Each time we sell securities pursuant to the registration statement of which this prospectus forms a part, a prospectus
supplement will be provided that contains specific information about the terms of that offering and the securities being sold in that
offering. The prospectus supplement may also add to, update or change the information contained in or incorporated by reference in this
prospectus. If information varies between this prospectus and any prospectus supplement, you should rely on the information in the prospectus
supplement.
You should only rely on the
information contained in or incorporated by reference in this prospectus, any prospectus supplement and any free writing prospectus prepared
by or on behalf of us or to which we have referred you. We have not authorized anyone to provide you with different information. We take
no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. If anyone
provides you with different or inconsistent information, you should not rely on it. We are not making offers to sell the securities described
in this prospectus in any jurisdiction in which an offer or solicitation is not authorized or in which the person making such offer or
solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation.
Before purchasing any securities,
you should carefully read both this prospectus and any prospectus supplement, together with the additional information described under
the heading “Where You Can Find More Information” and “Information We Incorporate by Reference.” You should assume
that the information contained in this prospectus, any prospectus supplement or any free writing prospectus is accurate only as of the
date on its respective cover, and that any information incorporated by reference is accurate only as of the date of the document incorporated
by reference, unless we indicate otherwise. Our business, financial condition, results of operations and prospects may have changed since
those dates.
No action is being taken
in any jurisdiction outside the United States to permit a public offering of our securities or possession or distribution of this prospectus
in that jurisdiction. Persons who come into possession of this prospectus in jurisdictions outside the United States are required to
inform themselves about and to observe any restrictions as to this offering and the distribution of this prospectus applicable to that
jurisdiction.
Unless the context indicates
otherwise, references in this prospectus to “the Company” refers to Phoenix Motor Inc., which is incorporated in the State
of Delaware, and not to its subsidiaries, and references herein to “PEV,” “we,” “us,” “our”
and similar terms refer to the Company and its consolidated subsidiaries.
Where
You Can Find More Information
This prospectus is part of
a registration statement on Form S-3 that we filed with the SEC. This prospectus does not contain all of the information included
in the registration statement.
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the
public at the SEC’s website at www.sec.gov. We also maintain a website located at https:// https://phoenixmotorcars.com/,
where these SEC filings and other information about the Company can be accessed, free of charge, as soon as reasonably practicable after
we electronically file the information with, or furnish it to, the SEC. The information contained on or that can be accessed through our
website does not constitute part of this prospectus, except for reports filed with the SEC that are specifically incorporated herein by
reference.
Forms of any documents establishing
the terms of the offered securities are filed as exhibits to the registration statement of which this prospectus forms a part or will
be filed through an amendment to our registration statement on Form S-3 or under cover of a Current Report on Form 8-K or other
document filed with the SEC and incorporated into this prospectus by reference. Statements in this prospectus about these documents are
summaries and each statement is qualified in all respects by reference to the document to which it refers. You should refer to the actual
documents for a more complete description of the relevant matters. The full registration statement, including exhibits thereto, may be
obtained from the SEC or us as indicated above.
Information
We Incorporate by Reference
The SEC allows us to “incorporate
by reference” information into this prospectus, which means that we can disclose important information to you by referring you
to another document filed separately with the SEC. The information incorporated by reference is considered to be part of this prospectus.
Any statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus will be deemed to be
modified or superseded for purposes of this prospectus to the extent a statement contained in this prospectus or in any other subsequently
filed document that is or is deemed to be incorporated by reference in this prospectus modifies or supersedes that statement. We incorporate
by reference in this prospectus the following documents and reports we filed with the SEC (other than, in each case, the portions that
are deemed to have been furnished and not filed in accordance with SEC rules):
| ● |
our Current Reports on
Form 8-K filed with the SEC on January 18, 2023 (excluding Items 7.01 and 9.01), March 13, 2023 (excluding
Item 7.01), March 30, 2023 (excluding Items 7.01 and 9.01), April 21, 2023, May 18, 2023 (excluding
Items 99.1 and 99.2), June 7, 2023, and June 27, 2023. |
We also incorporate by reference
the information contained in all other documents that we file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”) (other than the portions that are deemed to have been furnished
and not filed in accordance with SEC rules, unless otherwise indicated therein), on or after the date of the registration statement of
which this prospectus forms a part and prior to its effectiveness and prior to the completion of the offering of all securities under
this prospectus and any prospectus supplement. The information contained in any such document will be considered part of this prospectus
from the date the document is filed with the SEC. 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 prospectus and any accompanying prospectus supplement
to the extent that a statement contained herein or therein or in any other subsequently filed document which also is or is deemed to
be incorporated by reference herein or therein modifies or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this prospectus or any accompanying prospectus supplement.
We will provide to each person, including any beneficial owner, to whom a prospectus (or a notice of registration in lieu thereof) is
delivered, a copy of any or all of the documents incorporated by reference in this prospectus or any accompanying prospectus supplement
(other than an exhibit to these filings, unless the exhibit is specifically incorporated by reference in the document requested) at no
cost. Any such request can be made by writing or telephoning us at the following address and telephone number:
Phoenix Motor Inc.
1500 Lakeview Loop
Anaheim, CA 92807
Attention: Investor Relations
(909) 987-0815
Cautionary
Note Regarding Forward-Looking Statements
This prospectus, including
the documents incorporated by reference herein, contains “forward-looking statements” within the meaning of Section 27A
of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Exchange Act. In some cases,
you can identify forward-looking statements by the words “anticipate,” “believe,” “continue,” “could,”
“estimate,” “expect,” “intend,” “may,” “might,” “objective,”
“ongoing,” “plan,” “predict,” “project,” “potential,” “should,”
“will,” or “would,” or the negative of these terms, or other comparable terminology intended to identify statements
about the future. These statements involve known and unknown risks, uncertainties and other factors that may cause our actual results,
levels of activity, performance or achievements to be materially different from the information expressed or implied by these forward-looking
statements. In addition, these statements are based on our management’s beliefs and assumptions and on information currently available
to our management as of the date of this prospectus. While we believe such information forms a reasonable basis for such statements,
such information may be limited or incomplete, and our statements should not be read to indicate that we have conducted an exhaustive
inquiry into, or review of, all potentially available relevant information. Forward-looking statements are inherently subject to risks
and uncertainties, some of which cannot be predicted or quantified. The following factors, among others, could cause actual results to
differ from those set forth in the forward-looking statement:
We have identified factors
that could cause actual plans or results to differ materially from those included in any forward looking statements. These factors include,
but are not limited to, the following:
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our
ability to continue as a going concern; |
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our
history of losses, and expectation of incurring significant expenses and losses for the foreseeable future; |
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our
ability to convert concept trucks and vans into production and sales; |
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our
product development timeline and expected start of production; |
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our
ability to compete in the highly competitive EV commercial vehicle market and the development of competitive trucks and vans manufactured
and sold by our competitors and major industry vehicle companies; |
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our
ability to scale in a cost-effective manner; |
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our
ability to attract new customers and retain existing customers, and reduce our substantial customer concentration; |
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our
ability to control operating costs and future capital requirements and sources and uses of cash; |
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our
need and ability to obtain funding for our future operations; |
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our
financial and business performance, including business metrics and any underlying assumptions thereunder; |
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changes
in our strategy, future operations, financial position, estimated revenues and losses, projected costs, prospects and plans; |
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the
implementation, market acceptance and success of our business model; |
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the
impact of health epidemics, including the COVID- 19 pandemic, on our business and the actions we may take in response thereto; |
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our
expectations regarding our ability to obtain and maintain intellectual property protection and not infringe on the rights of others; |
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expectations
regarding the time during which we will be an emerging growth company under the JOBS Act; |
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our
business, expansion plans and opportunities; |
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our
ability to maintain compliance with the continued listing requirements of the Nasdaq listing rules in order to prevent our common
stock from being delisted from the Nasdaq Capital Market; |
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changes
in applicable laws or regulations; |
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our
ability to execute our business model, including market acceptance of our planned products and services; |
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the
possibility that we may be adversely affected by other economic, business or competitive factors; and |
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any
potential disruptions to global economic markets caused by international conflicts, wars and terrorist threats. |
These
forward-looking statements involve known and unknown risks, uncertainties, and other factors that may cause our actual results, levels
of activity, performance, or achievements to differ materially from those expressed or implied by these statements. These factors include
the matters discussed in the section entitled “Item 1A. Risk Factors” and elsewhere in our Annual Report on Form 10-K
for the year ended December 31, 2022. You should carefully consider the risks and uncertainties described under this section.
Moreover, we operate in an
evolving environment. New risk factors and uncertainties may emerge from time to time, and it is not possible for management to predict
all risk factors and uncertainties. As a result of these factors, we cannot assure you that the forward-looking statements in this prospectus,
including the documents incorporated by reference herein, will prove to be accurate. These statements are inherently uncertain and investors
are cautioned not to unduly rely upon these statements.
Except as required by applicable
law, we do not plan to publicly update or revise any forward-looking statements contained or incorporated by reference herein, whether
as a result of any new information, future events, changed circumstances or otherwise.
You should read this prospectus,
including the documents incorporated by reference herein, completely and with the understanding that our actual future results may be
materially different from what we expect. We qualify all of our forward-looking statements by these cautionary statements.
PROSPECTUS SUMMARY
This prospectus summary highlights certain information about our
company and other information contained in greater detail elsewhere in this prospectus or incorporated by reference into this prospectus.
This summary is not complete and does not contain all of the information that you should consider before making an investment decision.
You should carefully read the entire prospectus, any prospectus supplement, including the section entitled “Risk Factors”
and the documents incorporated by reference into this prospectus, before making an investment decision.You should carefully consider,
among other things, our financial statements and related notes and the information set forth in the section entitled “Risk Factors”
and other information incorporated by reference into this prospectus from our filings with the SEC. See also the sections entitled “Where
You Can Find More Information” and “Information We Incorporate By Reference.”
The Offering
This prospectus is part of a Registration Statement that we filed with
the SEC utilizing a shelf registration process. Under this shelf registration process, we may sell any combination of:
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· |
common stock; |
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· |
preferred stock; |
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· |
warrants to purchase any of the securities listed above; and/or |
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· |
units consisting of one or more of the foregoing. |
in one or more offerings up to a total dollar amount of $25,000,000.
This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide
a prospectus supplement that will contain specific information about the terms of that specific offering and include a discussion of any
risk factors or other special considerations that apply to those securities. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with the additional
information described under the heading “Where You Can Find More Information.”
About
Phoenix
Overview
Phoenix
Motor Inc. (the “Company”), doing business as “Phoenix Motorcars” through its wholly owned subsidiaries, Phoenix
Cars LLC, Phoenix Motorcars Leasing LLC, and EdisonFuture Motor, Inc., is a leading electrification solutions provider for the commercial
vehicle industry as well as other industries. Phoenix designs, develops, manufactures, assembles, and integrates electric drive systems
and light and medium duty electric vehicles (“EVs”), with an aim to reduce carbon intensity and greenhouse gas (“GHG”)
emissions. The Company operates two primary brands, “Phoenix Motorcars” which is focused on commercial products including
medium duty electric vehicles, chargers and electric forklifts, and “EdisonFuture” which intends to offer light-duty electric
vehicles.
As
an EV pioneer, we launched our first medium-duty electric drivetrain in 2009 and delivered our first commercial EV in 2014. In 2019, we
launched our second generation (“Gen 2”) High Power Drive System for the Ford E450 chassis, the E-200. Since April 2021,
we have been in production of our third generation (“Gen 3”) drivetrain (E-300). We are currently scheduled to release our
fourth generation (“Gen 4”) drivetrain in 2023, which is expected to allow for substantially higher production volumes and
achieve significant cost reduction.
Over
the last six years we have developed and deployed for our customers all-electric shuttle buses, utility trucks, service trucks, cargo
trucks and flatbed trucks. This differentiates us in the market where most commercial EV manufacturers are still in the prototype phase.
As of December 31, 2022, we have delivered a total of 116 EVs to more than 42 customers, representing what we believe is the largest
number of Class 4 cutaway medium duty electric shuttle bus deployments in the U.S. and the most electric vehicles deployed on the
Ford E-Series chassis. With over four million zero-emission miles accumulatively driven by the vehicles we delivered, we have gained
significant industry experience, distinct expertise and extensive knowledge in R&D, production, commercialization, customer engagement
and validation of light and medium duty EVs, enabling us to drive continued design enhancements and innovations in our current and future
generations drivetrain systems and other products.
We
believe the commercial EV market is currently underserved, is projected to grow from a low base today to global sales of three million
units by 2025 and nine million by 2030, led by buses and light trucks, representing significant growth opportunities. Major factors driving
the growth of the commercial EV market are rising policy support, increasing electrification of public transport fleets, stringent government
regulations, advancements in battery pack technologies and electric powertrains and accelerated investment in charging infrastructure.
By taking advantage of our proprietary technology, industry-leading experience and expertise, as well as increasing EV demand boosted
by government incentives, grants and regulations, we believe we are well positioned to capitalize on the commercial market opportunities.
Corporate Information
Phoenix Motor Inc. was incorporated
in Delaware on October 12, 2020. Two of our operating subsidiaries, Phoenix Cars, LLC and Phoenix Motorcars Leasing, LLC, were formed
in 2003 and our third operating subsidiary, EdisonFuture Motor, Inc., was established in July 2021. Our principal executive offices
are located at 1500 Lakeview Loop, Anaheim, CA 92807. Our telephone number is (909) 987-0815.
Our website is https://phoenixmotorcars.com/
and on the Investor Relations section of our website, we post or will post, as applicable, the following filings as soon as reasonably
practicable after they are electronically filed with or furnished to the Securities and Exchange Commission (“SEC”): our Annual
Report on Form 10-K (the “Annual Report”), our Proxy Statement on Schedule 14A, our Quarterly Reports on Form 10-Q, our Current
Reports on Form 8-K and any amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended.
All of the information on
our Investor Relations web page is available to be viewed free of charge. Information contained on our website is not part of this prospectus
or our other filings with the SEC. We assume no obligation to update or revise any forward-looking statements in this prospectus whether
as a result of new information, future events or otherwise, unless we are required to do so by law.
The SEC also maintains a website (www.sec.gov) that contains reports,
proxy and information statements and other information regarding issuers that file electronically with the SEC.
Implications of Being an Emerging Growth Company
We qualify as an “emerging
growth company” as defined in the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”). For so long as we remain
an emerging growth company, we are permitted, and currently intend, to rely on the following provisions of the JOBS Act that contain exceptions
from disclosure and other requirements that otherwise are applicable to public companies and file periodic reports with the SEC. These
provisions include, but are not limited to:
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being permitted to present only two years of audited financial statements and selected financial data and only two years of related “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in our periodic reports and registration statements, subject to certain exceptions; |
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not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002, as amended; |
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reduced disclosure obligations regarding executive compensation in our periodic reports, proxy statements, and registration statements; |
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not being required to comply with any requirement that may be adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements; and |
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exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved. |
We will remain an emerging
growth company until the earliest to occur of:
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December 31, 2027 (the last day of the fiscal year that follows the fifth anniversary of the completion of our initial public offering); |
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the last day of the fiscal year in which we have total annual gross revenue of at least $1.235 billion; |
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the date on which we are deemed to be a “large accelerated filer,” (as defined in the Exchange Act); and |
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the date on which we have issued more than $1 billion in non-convertible debt over a three-year period. |
We have elected to take advantage
of certain of the reduced disclosure obligations in this prospectus and may elect to take advantage of other reduced reporting requirements
in our future filings with the SEC. As a result, the information that we provide to our stockholders may be different than what you might
receive from other public reporting companies in which you hold equity interests.
We have elected to avail ourselves
of the provision of the JOBS Act that permits emerging growth companies to take advantage of an extended transition period to comply with
new or revised accounting standards applicable to public companies. As a result, we will not be subject to new or revised accounting standards
at the same time as other public companies that are not emerging growth companies.
We are also a “smaller
reporting company” as defined in the Exchange Act. We may continue to be a smaller reporting company even after we are no longer
an emerging growth company. We may take advantage of certain of the scaled disclosures available to smaller reporting companies until
the fiscal year following the determination that our voting and non-voting common stock held by non-affiliates is $250 million or more
measured on the last business day of our second fiscal quarter, or our annual revenues are less than $100 million during the most recently
completed fiscal year and our voting and non-voting common stock held by non-affiliates is $700 million or more measured on the last business
day of our second fiscal.
Risk
Factors
Investing in any of our securities
involves significant risks. Before making an investment decision, in addition to the other information contained in or incorporated by
reference in this prospectus and any prospectus supplement, you should carefully consider the specific risks set forth under the heading
“Risk Factors” in our most recent Annual Report on Form 10-K filed with the SEC and our most recent Quarterly Report
on Form 10-Q filed with the SEC , as such risk factors may be amended, supplemented or superseded from time to time by other reports
we file with the SEC, including subsequent Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, and the risk factors
described under the caption “Risk Factors” in any applicable prospectus supplement. See “Where You Can Find More Information”
and “Information We Incorporate by Reference.” If any of these risks actually occurs, our business, results of operations
and financial condition could suffer. In that case, the trading price of our securities could decline, and you could lose all or part
of your investment. Additional risks and uncertainties not currently known to us, or that we currently believe are immaterial, may also
adversely affect our business, operating results and financial condition and the value of an investment in our securities. In addition,
past financial performance may not be a reliable indicator of future performance, and historical trends should not be used to anticipate
results or trends in future periods.
Use
of Proceeds
We intend to use the net
proceeds from the sale of any securities covered by this prospectus as set forth in the applicable prospectus supplement. Pending any
specific application, we may temporarily invest funds in short-term investments, including marketable securities.
DESCRIPTIONS OF THE SECURITIES WE MAY OFFER
The descriptions of the securities contained in this prospectus, together
with any applicable prospectus supplement, summarize all the material terms and provisions of the various types of securities that we
may offer. We will describe in the applicable prospectus supplement relating to a particular offering the specific terms of the securities
offered by that prospectus supplement. We will indicate in the applicable prospectus supplement if the terms of the securities differ
from the terms we have summarized below. We will also include in the prospectus supplement information, where applicable, material United
States federal income tax considerations relating to the securities.
We may sell from time to time, in one or more offerings:
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shares of our common stock; |
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shares of our preferred stock; |
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· |
warrants to purchase any of the securities listed above; and/or |
| |
· |
units consisting of one or more of the foregoing. |
This prospectus may not be used to consummate a sale of securities
unless it is accompanied by a prospectus supplement.
Description
of Capital Stock
Phoenix has one class of securities registered
under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”): its common stock.
The following summary of the material terms of
our securities is not intended to be a complete description of all of the rights and preferences of such securities. Because it is only
a summary, it does not contain all of the information that may be important to you, and is qualified by reference to our Certificate of
Incorporation, as amended (the “Charter”) and the our Bylaws, which are exhibits to this Annual Report. We urge you to read
each of the Charter and, the Bylaws in their entirety for a complete description of the rights and preferences of our securities, as well
as the Delaware General Corporation Law, as amended (the “DGCL”).
General
Our authorized capital stock
consists of 450,000,000 shares of common stock, par value $0.0004 per share, and 50,000,000 shares of preferred stock, par value $0.0001
per share, of the Company (the “preferred stock”).
Common Stock
Each holder of common stock
is entitled to one vote for each share of common stock held on all matters submitted to a vote of the stockholders, including the election
of directors. Our articles of incorporation and bylaws do not provide for cumulative voting rights.
Subject to preferences that
may be applicable to any then outstanding preferred stock, the holders of our outstanding shares of common stock are entitled to receive
dividends, if any, as may be declared from time to time by our board of directors out of legally available funds. In the event of our
liquidation, dissolution or winding up, holders of common stock will be entitled to share ratably in the net assets legally available
for distribution to stockholders after the payment of all of our debts and other liabilities, subject to the satisfaction of any liquidation
preference granted to the holders of any outstanding shares of preferred stock.
Holders of our common stock
have no preemptive, conversion or subscription rights, and there are no redemption or sinking fund provisions applicable to the common
stock. The rights, preferences and privileges of the holders of common stock are subject to, and may be adversely affected by, the rights
of the holders of shares of any series of our preferred stock that are outstanding or that we may designate and issue in the future.
Our shares of common stock
are listed on The Nasdaq Capital Market under the symbol “PEV”. The transfer agent and registrar for our common stock is Vstock
Transfer, LLC. The transfer agent and registrar’s address is 18 Lafayette Place, Woodmere, NY 11598.
Options
As of as of June 30, 2023, we had outstanding options to purchase 1,305,500
shares of our common stock at a weighted average exercise price of $1.61.
Preferred Stock
Our certificate of incorporation, as amended,
provides that our board of directors may, by resolution, designate classes of preferred stock in the future. The designated series of
preferred stock shall have such powers, designations, preferences and relative, participation or optional or other special rights and
qualifications, limitations or restrictions as shall be expressed in the resolution adopted by the board of directors. Once designated
by our board of directors, each series of preferred stock will have specific financial and other terms that will be described in a prospectus
supplement. The description of the preferred stock that is set forth in any prospectus supplement is not complete without reference to
the documents that govern the preferred stock. These include our amended and restated certificate of incorporation, as amended, and any
certificates of designation that our board of directors may adopt. The certificate of designations fixes for each class or series the
designations, powers, preferences, rights, qualifications, limitations and restrictions, including, but not limited to, some or all of
the following:
| |
· |
the number of shares constituting that series and the distinctive designation of that series, which number may be increased or decreased (but not below the number of shares then outstanding) from time to time by action of the board of directors; |
| |
· |
the dividend rate and the manner and frequency of payment of dividends on the shares of that series, whether dividends will be cumulative, and, if so, from which date; |
| |
· |
whether that series will have voting rights, in addition to any voting rights provided by law, and, if so, the terms of such voting rights; |
| |
· |
whether that series will have conversion privileges, and, if so, the terms and conditions of such conversion, including provision for adjustment of the conversion rate in such events as the board of directors may determine; |
| |
· |
whether or not the shares of that series will be redeemable, and, if so, the terms and conditions of such redemption; |
| |
· |
whether that series will have a sinking fund for the redemption or purchase of shares of that series, and, if so, the terms and amount of such sinking fund; |
| |
· |
whether or not the shares of the series will have priority over or be on a parity with or be junior to the shares of any other series or class in any respect; |
| |
· |
the rights of the shares of that series in the event of voluntary or involuntary liquidation, dissolution or winding up of the corporation, and the relative rights or priority, if any, of payment of shares of that series; and |
| |
· |
any other relative rights, preferences and limitations of that series. |
All shares of preferred stock offered hereby will, when issued, be
fully paid and non-assessable, including shares of preferred stock issued upon the exercise of preferred stock warrants or subscription
rights, if any.
Although our board of directors has no intention at the present time
of doing so, it could authorize the issuance of a series of preferred stock that could, depending on the terms of such series, impede
the completion of a merger, tender offer or other takeover attempt.
Authorized but Unissued Shares
The authorized but unissued
shares of our common stock and preferred stock are available for future issuance without stockholder approval, subject to any limitations
imposed by the listing standards of Nasdaq.
These additional shares may
be used for a variety of corporate finance transactions, acquisitions and employee benefit plans. The existence of authorized but unissued
and unreserved common stock and preferred stock could make more difficult or discourage an attempt to obtain control of us by means of
a proxy contest, tender offer, merger or otherwise.
The foregoing provisions
of our Certificate of Incorporation and Bylaws could discourage potential acquisition proposals and could delay or prevent a change in
control. These provisions are intended to enhance the likelihood of continuity and stability in the composition of our board of directors
and in the policies formulated by our board of directors and to discourage certain types of transactions that may involve an actual or
threatened change of control. These provisions are designed to reduce our vulnerability to an unsolicited acquisition proposal. However,
these provisions could have the effect of discouraging others from making tender offers for our shares and, as a consequence, they also
may inhibit fluctuations in the market price of our common stock that could result from actual or rumored takeover attempts. These provisions
also may have the effect of preventing changes in our management or delaying or preventing a transaction that might benefit you or other
minority stockholders.
Choice
of Forum
Our Certificate of Incorporation
provides that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware
will be the sole and exclusive forum for: (1) any derivative action or proceeding brought on our behalf; (2) any action asserting
a claim of breach of a fiduciary duty by any of our directors, officers, or stockholders owed to us or our stockholders; (3) any
action arising pursuant to any provision of the Delaware General Corporation Law, our Certificate of Incorporation or our Bylaws; or
(4) any action asserting a claim against us governed by the internal affairs doctrine, except for, as to each of (1) through
(4) above, any claim (A) as to which the Court of Chancery determines that there is an indispensable party not subject to the
jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of the Court of Chancery
within ten days following such determination), (B) which is vested in the exclusive jurisdiction of a court or forum other than
the Court of Chancery, or (C) for which the Court of Chancery does not have subject matter jurisdiction. If an action is brought
outside of Delaware, the stockholder bringing the suit will be deemed to have consented to service of process on such stockholder’s
counsel. Although we believe this provision benefits us by providing increased consistency in the application of law in the types of
lawsuits to which it applies, a court may determine that this provision is unenforceable, and to the extent it is enforceable, the provision
may have the effect of discouraging lawsuits against our directors and officers.
Unless we consent in writing
to the selection of an alternative forum, the federal district courts of the U.S. shall be the sole and exclusive forum for the resolution
of any complaint asserting a cause of action arising under the Securities Act. Under Section 22 of the Securities Act, federal and
state courts have concurrent jurisdiction over all suits brought to enforce any duty or liability created by the Securities Act, and stockholders
cannot waive compliance with the federal securities laws and the rules and regulations thereunder. Accordingly, there is uncertainty
as to whether a court would enforce such a forum selection provision as written in connection with claims arising under the Securities
Act. Notwithstanding the foregoing, the forum selection clause will not apply to suits brought to enforce any liability or duty created
by the Exchange Act or any other claim for which the federal district courts of the U.S. shall be the sole and exclusive forum. This choice
of forum provision has important consequences for our stockholders.
Anti-takeover Effects of Our Articles of Incorporation and By-laws
We will be subject to the
provisions of Section 203 of Delaware General Corporation Law, or the DGCL, regulating corporate takeovers upon completion of this
offering. This statute prevents certain Delaware corporations, under certain circumstances, from engaging in a “business combination”
with:
| |
● |
a stockholder who
owns 10% or more of our outstanding voting stock (otherwise known as an “interested stockholder”); |
| |
● |
an affiliate of
an interested stockholder; or |
| |
● |
an
associate of an interested stockholder, for three years following the date that the stockholder became an interested stockholder. |
A “business combination” includes
a merger or sale of more than 10% of our assets. However, the above provisions of Section 203 do not apply if:
| |
● |
our
board of directors approves the transaction that made the stockholder an “interested stockholder,” prior to the date
of the transaction; |
| |
● |
after
the completion of the transaction that resulted in the stockholder becoming an interested stockholder, that stockholder owned at
least 85% of our voting stock outstanding at the time the transaction commenced, other than statutorily excluded shares of common
stock; or |
| |
● |
on
or subsequent to the date of the transaction, the business combination is approved by our board of directors and authorized at a
meeting of our stockholders, and not by written consent, by an affirmative vote of at least two-thirds of the outstanding voting
stock not owned by the interested stockholder. |
Description
of Warrants
We may issue warrants to
purchase shares of our common stock. We may issue warrants independently of or together with shares of our common stock. Warrants sold
with other securities may be attached to or separate from shares of our common stock. We may issue warrants under one or more warrant
agreements between us and a bank or trust company, as warrant agent, that we will name in the prospectus supplement relating to the particular
issue of offered warrants. If we appoint a warrant agent, such warrant agent will act solely as our agent in connection with the warrants
and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants.
The prospectus supplement
relating to any warrants we offer will include specific terms relating to the offering. These terms may include some or all of the following:
| ● |
the title of the
warrants; |
| ● |
the aggregate number
of warrants to be offered; |
| ● |
the price or prices
at which the warrants will be issued; |
| ● |
the currency or
currencies, including composite currencies, in which the price of the warrants may be payable; |
| ● |
the
designation and terms of the securities purchasable upon exercise of the warrants and the number of securities issuable upon exercise
of the warrants; |
| ● |
the
price at which and the currency or currencies, including composite currencies, in which the securities purchasable upon exercise
of the warrants may be purchased; |
| ● |
the
date on which the right to exercise the warrants shall commence and the date on which that right will expire; |
| ● |
if applicable,
the minimum or maximum amount of the warrants that may be exercised at any one time; |
| ● |
if
applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with
each such security; |
| ● |
if
applicable, the terms related to any permitted adjustment in the exercise price of or number of securities covered by the warrants; |
| ● |
if
applicable, the date on and after which the warrants and the related securities will be separately transferable; |
| ● |
if applicable,
a discussion of any material federal income tax considerations; and |
| ● |
any
other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of warrants. |
Exercise of Warrants
Each warrant will entitle
the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price that we describe
in the applicable prospectus supplement. Holders of the warrants may exercise the warrants at any time up to the specified time on the
expiration date that we set forth in the applicable prospectus supplement. After the specified time on the expiration date, unexercised
warrants will become void.
Warrants may be exercised
as described in the applicable prospectus supplement. Upon receipt of the required payment and the warrant certificate properly completed
and duly executed at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement,
we will, as soon as practicable, issue and deliver the underlying securities purchasable upon such exercise. If fewer than all of the
warrants represented by a warrant certificate are exercised, we will issue a new warrant certificate for the remaining amount of warrants.
The description in the applicable
prospectus supplement of any warrants we offer will not necessarily be complete and will be qualified in its entirety by reference to
the applicable form of warrant agreement, including a form of warrant certificate, which will describe the terms of the series of warrants
being offered and which will be filed with the SEC and incorporated by reference in the registration statement of which this prospectus
is a part.
Enforceability of Rights by Holders of Warrants
Any warrant agent will act solely as our agent
under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant.
A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility
in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility to initiate any proceedings
at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the
holder of any other warrant, enforce by appropriate legal action the holder’s right to exercise, and receive the securities purchasable
upon exercise of, its warrants in accordance with their terms.
Governing Law
Each warrant agreement and any warrants issued
under the warrant agreements will be governed by New York law.
As of as of June 30, 2023, we had outstanding wnderwriter’s warrants
to purchase 105,000 shares of our common stock at an exercise price of $9.375 per share.
DESCRIPTION OF UNITS
We may issue units comprised of one or more of
the other securities described in this prospectus or in any prospectus supplement in any combination. Each unit will be issued so that
the holder of the unit is also the holder, with the rights and obligations of a holder, of each security included in the unit. The unit
agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately,
at any time or at any time before a specified date or upon the occurrence of a specified event or occurrence. The applicable prospectus
supplement will describe:
|
|
· |
the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; |
| |
· |
any unit agreement under which the units will be issued; |
| |
· |
any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and |
| |
· |
whether the units will be issued in fully registered or global form. |
Plan
of Distribution
We may offer and sell the
securities described in this prospectus from time to time in one or more transactions, including without limitation:
| ● |
directly
to one or more investors, including through a specific bidding, auction or other process; |
| ● |
to
investors through agents; |
| ● |
to
or through brokers or dealers; |
| ● |
to
the public through underwriting syndicates led by one or more managing underwriters; |
| ● |
to
one or more underwriters acting alone for resale to investors or to the public; or |
| ● |
through
a combination of any of these methods or any other method permitted pursuant to applicable law. |
In addition, the manner in
which we may offer and sell some or all of the securities described in this prospectus includes, without limitation, through:
| ● |
a
block trade in which a broker-dealer will attempt to sell as agent, but may position or resell a portion of the block, as principal,
in order to facilitate the transaction; |
| ● |
purchases
by a broker-dealer, as principal, and resale by the broker-dealer for its account; |
| ● |
ordinary
brokerage transactions and transactions in which a broker solicits purchasers; or |
| ● |
privately
negotiated transactions. |
A prospectus supplement with
respect to each offering of securities will set forth the terms of the offering and the method of distribution of the securities and
will identify any firms acting as underwriters, dealers or agents in connection with the offering, including:
| ● |
the
name or names of any underwriters, dealers or agents and the amounts of securities underwritten or purchased by each of them, if
any; |
| ● |
the
purchase price of the securities being offered and the net proceeds to be received by us from the sale; |
| ● |
any
public offering price; |
| ● |
any
over-allotment options under which the underwriters may purchase additional securities from us; |
| ● |
any
delayed delivery arrangements; |
| ● |
any
underwriting discounts or commissions or agency fees and other items constituting compensation to underwriters, dealers or agents; |
| ● |
any
discounts or concessions allowed or reallowed or paid to dealers; and |
| ● |
any
securities exchange or markets on which the securities offered in the prospectus supplement may be listed. |
The offer and sale of the
securities described in this prospectus by us, the underwriters or the third parties described above may be effected from time to time
in one or more transactions, including privately negotiated transactions, either:
| ● |
at
a fixed price or prices, which may be changed; |
| ● |
at
market prices prevailing at the time of sale; |
| ● |
in
“at the market offerings,” within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market
maker or into an existing trading market, on an exchange or otherwise; |
| ● |
at
prices related to the prevailing market prices; or |
In connection with the sale
of the securities, underwriters, dealers or agents may be deemed to have received compensation from us in the form of underwriting discounts
or commissions and also may receive commissions from securities purchasers for whom they may act as agent. Underwriters may sell the
securities to or through dealers, and the dealers may receive compensation in the form of discounts, concessions or commissions from
the underwriters or commissions from the purchasers for whom they may act as agent.
Underwriters, dealers and
agents participating in the securities distribution may be deemed to be underwriters, and any discounts and commissions they receive
and any profit they realize on the resale of the securities may be deemed to be underwriting discounts and commissions under the Securities
Act. Underwriters and their controlling persons, dealers and agents may be entitled, under agreements entered into with us, to indemnification
against and contribution toward specific civil liabilities, including liabilities under the Securities Act.
Any securities we sell pursuant
to a prospectus supplement may or may not be listed on a national securities exchange. It is possible that one or more underwriters may
make a market in the securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time
without notice. No assurance can be given as to the liquidity of, or the trading market for, any offered securities.
In connection with any offering,
the underwriters may purchase and sell securities in the open market. These transactions may include short sales, stabilizing transactions
and purchases to cover positions created by short sales. Short sales involve the sale by the underwriters of a greater number of securities
than they are required to purchase in an offering. Stabilizing transactions consist of bids or purchases made for the purpose of preventing
a decline in the market price of the securities while an offering is in progress. The underwriters also may impose a penalty bid. This
occurs when a particular underwriter repays to the underwriters a portion of the underwriting discount received by it because the underwriters
have repurchased securities sold by or for the account of that underwriter in stabilizing or short-covering transactions. These activities
by the underwriters may stabilize, maintain or otherwise affect the market price of the securities. As a result, the price of the securities
may be higher than the price that otherwise might exist in the open market. If these activities are commenced, they may be discontinued
by the underwriters at any time. Underwriters may engage in over-allotment. If any underwriters create a short position in the securities
in an offering in which they sell more securities than are set forth on the cover page of the applicable prospectus supplement,
the underwriters may reduce that short position by purchasing the securities in the open market.
Underwriters, dealers or
agents that participate in the offer of securities, or their affiliates or associates, may have engaged or engage in transactions with
and perform services for, us or our affiliates in the ordinary course of business for which they may have received or receive customary
fees and reimbursement of expenses.
Legal
Matters
Unless otherwise indicated
in the applicable prospectus supplement, certain legal matters regarding the validity of the securities to be offered by this prospectus
will be passed upon for us by Loeb & Loeb LLP. Additional legal matters may be passed upon for us or any underwriters, dealers
or agents by counsel that will be named in the applicable prospectus supplement.
Experts
The financial statements
of Phoenix Motor Inc. as of December 31, 2022 and December 31, 2021 and for the years then ended incorporated in this prospectus
by reference to the Annual Report on Form 10-K for the year ended December 31, 2022 have been so incorporated in reliance on
the report (which contains an explanatory paragraph relating to the Company’s ability to continue as a going concern as described
in Note 2 to the 2022 financial statements) of Marcum Asia CPAs LLP, an independent registered public accounting firm, given on the authority
of said firm as experts in auditing and accounting.
PHOENIX MOTOR INC.
$25,000,000
Common Stock
Preferred Stock
Warrants
Units
PROSPECTUS
,
2023
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following sets forth
the expenses in connection with the issuance and distribution of the securities being registered hereby, other than underwriting discounts
and commissions. All amounts set forth below, other than the SEC registration fee are estimates.
| SEC registration fee |
|
$ |
2,755 |
|
| FINRA filing fee |
|
|
* |
|
| Warrant agent fees and expenses |
|
|
* |
|
| Transfer agent and registrar fees |
|
|
* |
|
| Printing expenses |
|
|
* |
|
| Accounting fees and expenses |
|
|
* |
|
| Legal fees and expenses |
|
|
* |
|
| Miscellaneous expenses |
|
|
* |
|
| Total |
|
$ |
2,755 |
|
| * |
These
fees and expenses will be determined based on the number of issuances and amount and type of securities issued. Accordingly, they
cannot be estimated at this time. An estimate of the aggregate amount of these expenses will be reflected in the applicable prospectus
supplement. |
Item 15. Indemnification of Directors and Officers.
The following summary is
qualified in its entirety by reference to the complete copy of the DGCL, and our Amended and Restated Charter and our Bylaws.
Section 145 of the DGCL
grants each Delaware corporation the power to indemnify any person who is or was a director, officer, employee or agent of a corporation,
against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by
him or her in connection with 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, by reason of serving or having served in any such capacity,
if he or she acted in good faith in a manner 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. A Delaware
corporation may similarly indemnify any such person in actions by or in the right of the corporation if he or she acted in good faith
in a manner reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification may
be made in respect of any claim, issue or matter as to which the person shall have been adjudged to be liable to the corporation unless
and only to the extent that the Delaware Court of Chancery or the court in which the action was brought determines that, despite adjudication
of liability, but in view of all of the circumstances of the case, the person is fairly and reasonably entitled to indemnity for expenses
which the Delaware Court of Chancery or other court shall deem proper.
Section 102(b)(7) of
the DGCL enables a corporation in its certificate of incorporation, or an amendment thereto, to eliminate or limit the personal liability
of a director to the corporation or its stockholders for monetary damages for violations of the director’s fiduciary duty as a
director, except (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174
of the DGCL (providing for director liability with respect to unlawful payment of dividends or unlawful stock purchases or redemptions)
or (iv) for any transaction from which a director derived an improper personal benefit.
Our Amended and Restated
Charter and Bylaws indemnify our directors and officers to the full extent permitted by the DGCL and our Amended and Restated Charter
also allows our board of directors to indemnify other employees. This indemnification extends to the payment of judgments in actions
against officers and directors and to reimbursement of amounts paid in settlement of such claims or actions and may apply to judgments
in favor of us or amounts paid in settlement to us. This indemnification also extends to the payment of attorneys’ fees and expenses
of officers and directors in suits against them where the officer or director acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, our best interests, and, with respect to any criminal action or proceeding, he or she had no reasonable
cause to believe his or her conduct was unlawful. This right of indemnification is not exclusive of any right to which the officer or
director may be entitled as a matter of law and shall extend and apply to the estates of deceased officers and directors.
In addition to the indemnification required in
our Amended and Restated Charter and Bylaws, we have also entered into director indemnity agreements and officer indemnity agreements,
which provide for the indemnification of our directors and officers for all reasonable expenses and liabilities incurred in connection
with any action or proceeding brought against them by reason of the fact that they are or were our agents.
We maintain a directors’
and officers’ insurance policy. The policy insures directors and officers against unindemnified losses arising from certain wrongful
acts in their capacities as directors and officers and reimburses us for those losses for which we have lawfully indemnified the directors
and officers. The policy contains various exclusions that are normal and customary for policies of this type.
Item 16. Exhibits.
A list of exhibits included
as part of this registration statement is set forth in the Exhibit Index and is incorporated herein by reference.
Item 17. 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 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) 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 paragraphs (a)(1)(i), (a)(1)(ii) and
(a)(1)(iii) of this section do not apply if the information required to be included by 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 Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of the registration statement. |
| (2) |
That,
for the purpose of determining any liability under the Securities Act of 1933, 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. |
| (4) |
That, for the purpose
of determining liability under the Securities Act of 1933 to any purchaser: |
| (i) |
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement
as of the date the filed prospectus was deemed part of and included in the registration statement; and |
| (ii) |
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing
the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract
of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference
in the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract
of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document immediately prior to such effective date. |
| (5) |
That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller
to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| (i) |
Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
| (ii) |
Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant; |
| (iii) |
The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and |
| (iv) |
Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
| (b) |
The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the 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 of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 Act and
will be governed by the final adjudication of such issue. |
| (d) |
The
undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to
act under subsection (a) of section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and
regulations prescribed by the Commission under section 305(b)(2) of the Act. |
EXHIBIT INDEX
| Exhibit No. |
|
Description
of Exhibits |
|
Incorporation
by Reference |
| 1.1+ |
|
Underwriting Agreement |
|
|
| 4.1 |
|
Certificate of Incorporation of the Registrant, as amended.*** |
|
Exhibit 3.1 to the
Registrant’s Registration Statement on Form S-1 (File No. 333-261384), filed with the SEC on November 29, 2021 |
| 4.2 |
|
Certificate of Amendment of Phoenix Motor Inc..*** |
|
Exhibit 3.2 to the
Registrant’s Registration Statement on Form S-1 (File No. 333-261384), filed with the SEC on November 29, 2021 |
| 4.3 |
|
Certificate of Amendment to Amended Certificate of Incorporation of Phoenix Motor Inc. *** |
|
Exhibit 3.4 to the
Registrant’s Registration Statement on Form S-1 (File No. 333-261384), filed with the SEC on November 29, 2021 |
| 4.4 |
|
Second Certificate of Amendment to Amended Certificate of Incorporation of Phoenix Motor Inc. dated March 8, 2022..*** |
|
Exhibit 3.5 to the
Registrant’s Registration Statement on Form S-1/A (File No. 333-261384), filed with the SEC on April 20,2022 |
| 4.5 |
|
Third Certificate of Amendment to Certificate of Incorporation of Phoenix Motor Inc. dated April 29, 2022.*** |
|
Exhibit 3.6 to the
Registrant’s Registration Statement on Form S-1/A (File No. 333-261384), filed with the SEC on May 17, 2022. |
| 4.6 |
|
Certificate of Correction to the Second Amendment to the Amended Certificate of Incorporation.*** |
|
Exhibit 3.7 to the
Registrant’s Registration Statement on Form S-1 (File No. 333-261384), filed with the SEC on May 6, 2022 |
| 4.7 |
|
Bylaws of the Registrant *** |
|
Exhibit 3.3 to the
Registrant’s Registration Statement on Form S-1 (File No. 333-261384), filed with the SEC on November 29, 2021) |
| 4.8 |
|
Form of the Company’s Stock Certificate *** |
|
Exhibit 4.1 to the Registrant’s Registration Statement on
Form S-1/A (File No. 333-261384), filed with the SEC on May 24, 2022. |
| 4.9 |
|
Form of Underwriters Warrant *** |
|
Exhibit 4.2 to the Registrant’s Registration Statement on
Form S-1/A (File No. 333-261384), filed with the SEC on May 24, 2022. |
| 4.8+ |
|
Form of Warrant Agreement
(including form of warrant certificate). |
|
|
| 5.1* |
|
Opinion of Loeb &
Loeb LLP |
|
|
| 23.1* |
|
Consent of MarcumAsia CPAs
LLP, independent registered public accounting firm of the Company |
|
|
| 23.3* |
|
Consent of Loeb &
Loeb LLP, counsel to the Company (included in Exhibit 5.1) |
|
|
| 24.1* |
|
Power
of Attorney (included in the signature page to this registration statement) |
|
|
| 107* |
|
Filing Fee Table |
|
|
| * |
Filed herewith. |
| ** |
Furnished herewith. |
| *** |
Previously filed. |
| + |
To be filed, if necessary,
either by amendment to this registration statement or as an exhibit to a document to be incorporated by reference in this registration
statement. |
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-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Anaheim, California, on the 14th day of July, 2023.
| |
PHOENIX MOTOR INC. |
| |
|
|
| |
By: |
/s/Chris Wang |
| |
|
Chris Wang |
| |
|
Chief Financial Officer |
POWER OF ATTORNEY
Each person whose signature
appears below constitutes and appoints Xiaofeng Denton Peng and Chris Wang, or each of them individually, as his or her true and lawful
attorney-in-fact and agent, with full powers of substitution and resubstitution, for and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including pre-effective amendments, post-effective amendments, exhibits thereto and
other documents in connection therewith) to this registration statement and any subsequent registration statement we may hereafter file
with the Securities and Exchange Commission pursuant to Rule 462(b) under the Securities Act of 1933 to register additional
securities in connection with 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 requisite and necessary to be done in and about 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 individually, 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, this registration statement has been signed by the following persons in the capacities and on the dates
indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Xiaofeng Denton Peng |
|
Chief Executive Officer and Chairman |
|
July 14, 2023 |
| Xiaofeng Denton Peng |
|
(principal executive officer) |
|
|
| |
|
|
|
|
| /s/ Chris Wang |
|
Chief Accounting Officer and Chief Financial Officer
(principal financial and accounting officer) |
|
July 14, 2023 |
| Chris Wang |
|
|
|
| |
|
|
|
|
| /s John F. Perkowski |
|
|
|
July 14, 2023 |
| John F. Perkowski |
|
Director |
|
|
| |
|
|
|
|
| |
|
|
|
July
, 2023 |
| Liang Lance Zhou |
|
Director |
|
|
| |
|
|
|
|
| /s/ Steven E. Stivers |
|
|
|
July 14,2023 |
| Steven E. Stivers |
|
Director |
|
|
| |
|
|
|
|
| /s/ sam Van |
|
|
|
July 14, 2023 |
| Sam Van |
|
Director |
|
|
| |
|
|
|
|
| /s/ Zhenxing Fu |
|
|
|
July 14, 2023 |
| Zhenxing Fu |
|
Director |
|
|
| |
|
|
|
|
| /s HoongKhoeng Cheong |
|
|
|
July 14, 2023 |
| HoongKhoeng Cheong |
|
Director |
|
|
Exhibit 5.1
 |
Loeb&Loeb LLP
345 Park Avenue
New York, NY 10154 |
Main 212.407.4000
Fax 212.407.4990 |
July 14, 2023
Phoenix Motor, Inc.
1500 Lakeview Loop
Anaheim, CA 92807
Ladies and Gentlemen:
We have acted as counsel to Phoenix Motor, Inc.,
a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-3 (the “Registration
Statement”) filed by the Company with the Securities and Exchange Commission (the “SEC”) under the Securities
Act of 1933, as amended (the “Act”), for the issuance and sale from time to time, on a delayed basis, by the Company
of (i) common stock, par value $0.004 per share (the “Common Stock”), (ii) preferred stock, par value $0.001
per share (the “Preferred Stock”), (iii) warrants to purchase Common Stock or Preferred Stock (the “Warrants”),
and/or (iv) units consisting of one or more of the foregoing (the “Units”), in each case as contemplated by the
Registration Statement (including the prospectus constituting part thereof (the “Prospectus”)) to which this opinion
letter has been filed as an exhibit.
The Common Stock, Preferred Stock, Warrants and
Units are collectively referred to herein as the “Securities.” The Securities being registered are for a maximum aggregate
offering price of $25,000,000. The Securities may be offered and sold from time to time pursuant to Rule 415 under the Act, at which
time it is contemplated that the Prospectus will be supplemented in the future by one or more supplements to the Prospectus (each, a
“Prospectus Supplement”).
We have been advised by the Company and, for
purposes of this opinion, we have assumed that:
1. The
rights, preferences, privileges and restrictions, including voting rights, dividend rights, conversion rights, redemption privileges
and liquidation privileges of each series of Preferred Stock will be set forth in a certificate of designation to be approved by the
Company’s board of directors, or in an amendment to the Company’s Certificate of Incorporation, as amended (the “Certificate
of Incorporation”), to be approved by the Company’s board of directors and shareholders, and that one or both of these
documents will be filed either as an exhibit to an amendment to the Registration Statement to be filed after the date of this opinion
or as an exhibit to a Current Report on Form 8-K to be filed after the Registration Statement has become effective;
2. The
Warrants will be issued pursuant to a warrant agreement to be entered into between the Company and the holder or beneficial owner or
between the Company and a warrant agent to be identified in the applicable Prospectus Supplement (the “Warrant Agreement”).
The Warrant Agreement will be filed either as an exhibit to an amendment to the Registration Statement to be filed after the date of
this opinion or as an exhibit to a Current Report on Form 8-K to be filed after the Registration Statement has become effective,
and the particular terms of any series of the Warrants to be issued will be set forth in a supplement to the prospectus forming a part
of the Registration Statement. We further assume such Warrants and, if applicable, such Warrant Agreement shall be governed by the laws
of the State of New York;
Los Angeles New York Chicago Nashville Washington, DC Beijing Hong
Kong www.loeb.com
A limited liability partnership including professional corporations
 |
Phoenix Motor, Inc.
July 14, 2023
Page 2 |
3. The
Units will be issued pursuant to a unit agreement to be entered into between the Company and a financial institution acting as unit agent
(the “Unit Agreement”). The Unit Agreement will be filed either as an exhibit to an amendment to the Registration
Statement to be filed after the date of this opinion or as an exhibit to a Current Report on Form 8-K to be filed after the Registration
Statement has become effective, and the particular terms of any series of the Units to be issued will be set forth in a supplement to
the prospectus forming a part of the Registration Statement. We further assume such Unit Agreement shall be governed by the laws of the
State of New York; and
4. The
number of shares of Common Stock and Preferred Stock to be offered and sold subsequent to the date hereof under the Registration Statement,
together with the number of shares of Common Stock and Preferred Stock of the same class issuable upon exercise, conversion or exchange
of any Securities will not, in the aggregate, exceed the number of shares of each such class of Common Stock or Preferred Stock authorized
in the Certificate of Incorporation.
We have further assumed that (i) all information
contained in all documents reviewed by us is true and correct; (ii) all signatures on all documents examined by us are genuine;
(iii) all documents submitted to us as originals are authentic and all documents submitted to us as copies conform to the originals
of those documents; (iv) each natural person signing any document reviewed by us had the legal capacity to do so; (v) the Registration
Statement, and any further amendments thereto (including post-effective amendments) will have become effective and will comply with all
applicable laws; (vi) a prospectus supplement will have been prepared and filed with the SEC describing the Securities offered thereby;
(vii) all Securities will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated
in the Registration Statement and the applicable prospectus supplement; (viii) a definitive purchase, underwriting or similar agreement
with respect to any Securities offered will have been duly authorized and validly executed and delivered by the Company and the other
parties thereto; (ix) the Company will have reserved from its authorized but unissued and unreserved shares of stock a number sufficient
to issue all shares of Common Stock and Preferred Stock; (x) the certificates representing the Securities will be duly executed
and delivered; and (xi) if the holders of the shares of Preferred Stock are granted rights to inspect corporate books and records
and to vote in the election of directors or any matters on which shareholders of the Company may vote, such rights will be set forth
in the Certificate of Incorporation or the Certificate of Incorporation grants to the Company’s board of directors the power to
confer such voting or inspection rights and the Company’s board of directors will have conferred such rights.
|
Phoenix Motor, Inc.
July 14, 2023
Page 3 |
We have examined the Registration Statement,
including the exhibits thereto, and such other documents, corporate records, and instruments and have examined such laws and regulations
as we have deemed necessary for purposes of rendering the opinions set forth herein. Based upon the foregoing and subject to the additional
qualifications set forth below, we are of the opinion that:
1. The
Common Stock, when (a) the issuance and terms of sale of the shares of Common Stock have been duly authorized by the board of directors
of the Company in conformity with its Certificate of Incorporation, and (b) such shares have been issued and delivered against payment
of the purchase price therefor in an amount in excess of the par value thereof, in accordance with the applicable definitive purchase,
underwriting or similar agreement, and as contemplated by the Registration Statement, the Prospectus and the related Prospectus Supplement,
will be validly issued, fully paid and nonassessable.
2. The
Preferred Stock, when (a) the issuance and terms of sale of the shares of Preferred Stock have been duly authorized by the board
of directors of the Company in conformity with its Certificate of Incorporation, (b) an appropriate certificate or certificates
of designation relating to a class or series of the Preferred Stock to be sold under the Registration Statement has or have been duly
authorized and adopted and filed with the Secretary of State of Delaware, (c) the terms of issuance and sale of shares of such class
or series of Preferred Stock have been duly established in conformity with the Company’s Certificate of Incorporation and Bylaws
so as to not violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company
and comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company or any
of its property, and (d) such shares have been issued and delivered against payment of the purchase price therefor in an amount
in excess of the par value thereof, in accordance with the applicable definitive purchase, underwriting or similar agreement, and as
contemplated by the Registration Statement, the Prospectus and the related Prospectus Supplement, will be validly issued, fully paid
and nonassessable.
3. The
Warrants, when (a) the issuance and terms of sale of the Warrants have been duly authorized by the board of directors of the Company
in conformity with its Certificate of Incorporation (b) the Warrant Agreement relating to the Warrants has been duly authorized,
executed and delivered, (c) the terms of the offer, issuance and sale of such Warrants have been duly established in conformity
with the Warrant Agreement, (d) the Warrant Agreement and the offer, issuance and sale of the Warrants do not violate any applicable
law or result in a default under or breach of any agreement or instrument binding upon the Company and comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over the Company, (e) such Warrants have been duly executed
and countersigned in accordance with the Warrant Agreement and offered, issued and sold as contemplated in the Registration Statement,
the Prospectus and the related Prospectus Supplement and the Warrant Agreement, and (f) such Warrants have been issued and delivered
against payment of the purchase price therefor, will constitute valid and legally binding obligations of the Company.
|
Phoenix Motor, Inc.
July 14, 2023
Page 4 |
4. The
Units, when (a) the issuance and terms of sale of the Units have been duly authorized by the board of directors of the Company in
conformity with its Certificate of Incorporation, (b) the Unit Agreement relating to the Units has been duly authorized, executed
and delivered, (c) the terms of the offer, issuance and sale of such Units have been duly established in conformity with the Unit
Agreement, (d) the Unit Agreement and the offer, issuance and sale of the Units do not violate any applicable law or result in a
default under or breach of any agreement or instrument binding upon the Company and comply with any requirement or restriction imposed
by any court or governmental body having jurisdiction over the Company, (e) such Units have been duly executed and countersigned
in accordance with the Unit Agreement and offered, issued and sold as contemplated in the Registration Statement, the Prospectus and
the related Prospectus Supplement and the Unit Agreement, and (f) such Units have been issued and delivered against payment of the
purchase price therefor, will constitute valid and legally binding obligations of the Company.
The foregoing opinions are qualified to the extent
that the enforceability of any document, instrument or the Securities may be limited by or subject to bankruptcy, insolvency, fraudulent
transfer or conveyance, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally,
and general equitable or public policy principles.
We are opining solely on (i) all applicable
statutory provisions of Delaware corporate law, including the rules and regulations underlying those provisions, all applicable
provisions of the Constitution of the State of Delaware and all applicable judicial and regulatory determinations, and (ii) the
laws of the State of New York.
We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement and to the reference made to us under the caption “Legal Matters” in the Prospectus.
In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7
of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
| |
Very truly yours, |
| |
|
| |
|
| |
/s/ Loeb & Loeb LLP |
| |
Loeb & Loeb LLP |
Exhibit 23.1
Independent
Registered Public Accounting Firm’s Consent
We consent to the incorporation by reference in
this Registration Statement of Phoenix Motor Inc. on Form S-3 of our report dated March 31, 2023, which includes an explanatory paragraph
as to the Company’s ability to continue as a going concern, with respect to our audits of the consolidated financial statements
of Phoenix Motor Inc. as of December 31, 2022 and 2021 and for the years then ended appearing in the Annual Report on Form 10-K of Phoenix
Motor Inc. for the year ended December 31, 2022. We also consent to the reference to our firm under the heading “Experts”
in the Prospectus, which is part of this Registration Statement.
/s/ Marcum Asia CPAs LLP
Marcum Asia CPAs LLP
New York, NY
July 14, 2023
NEW YORK OFFICE • 7 Penn Plaza • Suite
830 • New York, New York • 10001
Phone 646.442.4845 • Fax 646.349.5200 •
www.marcumasia.com
EXHIBIT 107
Calculation of Filing Fee Tables
S-3
(Form Type)
PHOENIX MOTOR INC.
(Exact Name of Registrant as Specified in its Charter)
Table 1:
Newly
Registered
Securities |
|
Security
Type |
|
Security
Class
Title(1) |
|
Fee
Calculation
or Carry
Forward
Rule |
|
Amount
Registered(2) |
|
Proposed
Maximum
Offering
Price Per
Share(3) |
|
Maximum Aggregate
Offering
Price(2) |
|
|
Fee Rate |
|
Amount of
Registration
Fee(4)(5) |
|
Carry
Forward
Form
Type |
|
Carry
Forward
File
Number |
|
Carry
Forward
Initial
effective
date |
|
Filing Fee
Previously
Paid In
Connection
with
Unsold
Securities
to be
Carried
Forward(4) |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Newly Registered Shares |
| Fees to be paid |
|
Equity |
|
Common Stock, $0.0004 par value |
|
Rule 457(o) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Equity |
|
Preferred Stock, $0.001 par vale |
|
Rule 457(o |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Other |
|
Warrants |
|
Rule 457(o) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Other |
|
Units |
|
Rule 457(o |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Unallocated (Universal) Shelf |
|
Unallocated (Universal) Shelf |
|
Rule 457(o) |
|
$ |
25,000,000 |
|
|
|
$ |
25,000,000 |
|
|
$110.20 per $1,000,000 |
|
$ |
2,755.00 |
|
|
|
|
|
|
|
|
|
| Fees Previously Paid |
|
|
|
|
|
Rule 457(o) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Carry Forward Securities |
| Carry Forward Securities |
|
Unallocated (Universal) Shelf |
|
Unallocated (Universal) Shelf |
|
Rule 415(a)(6) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Total Offering Amounts |
|
|
|
$ |
25,000,000 |
|
|
|
|
$ |
2,755.00 |
|
|
|
|
|
|
|
|
|
| |
|
Total Fees Previously Paid |
|
|
|
|
|
|
|
|
|
$ |
0.00 |
|
|
|
|
|
|
|
|
|
| |
|
Total Fee Offsets |
|
|
|
|
|
|
|
|
|
$ |
0.00 |
|
|
|
|
|
|
|
|
|
| |
|
Net Fee Due |
|
|
|
|
|
|
|
|
|
$ |
2,755,00 |
|
|
|
|
|
|
|
|
|
| |
(1) |
Any securities
registered hereunder may be sold separately or as units with other securities registered hereunder. The securities which may be offered
pursuant to this Registration Statement include, pursuant to Rule 416 of the Securities Act of 1933, as amended (the “Securities
Act”), such additional number of shares of the registrant’s common shares that may become issuable as a result of any
stock split, stock dividends or similar event. |
| |
(2) |
An
indeterminate aggregate offering price and number or amount of the securities of each identified class is being registered as may
from time to time be sold at indeterminate prices, with a maximum aggregate offering price not to exceed $25,000,000. |
| |
(3) |
The
proposed maximum offering price per share will be determined from time to time by the registrant in connection with the issuance
by the registrant of the securities hereunder and is not specified as to each class of security pursuant to General Instruction II.D.
of Form S-3 under the Securities Act. |
| |
(4) |
Pursuant
to Rule 457(o) under the Securities Act, the registration fee has been calculated on the basis of the maximum aggregate offering
price. |
| |
(5) |
Warrants may be sold separately or together with any of the securities
registered hereby and may be exercisable for shares of common stock or preferred stock registered hereby. Because the warrants will provide
a right only to purchase such securities offered hereunder, no additional registration fee is required. |
Table 2: Fee Offset Claims and Sources
| | |
Registrant
or Filer
Name | |
Form
or
Filing
Type | |
File
Number | |
Initial
Filing
Date | |
Filing
Date | |
Fee
Offset
Claimed | |
Security
Type
Associated
with Fee
Offset
Claimed | |
Security
Title
Associated
with Fee
Offset
Claimed | |
Unsold
Securities
Associated
with Fee
Offset
Claimed | |
Unsold
Aggregate
Offering
Amount
Associated
with Fee
Offset
Claimed | |
Fee
Paid with Fee
Offset Source(1) |
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| Rules 457(b)
and 0-11(a)(2) |
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| Fee Offset Claims | |
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| Fee Offset Sources | |
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| Rule 457(p) |
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| Fee Offset Claims | |
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| Fee Offset Sources | |
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Phoenix Motor (NASDAQ:PEV)
Historical Stock Chart
From Nov 2023 to Dec 2023
Phoenix Motor (NASDAQ:PEV)
Historical Stock Chart
From Dec 2022 to Dec 2023
