As filed with the Securities and Exchange Commission on
January
25,
2023
Registration No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EVE HOLDING, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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85-2549808
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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1400 General Aviation Drive
Melbourne, Florida
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32935
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(Address of principal executive offices)
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(Zip code)
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Eve Holding, Inc. 2022 Stock
Incentive Plan
(Full title of the plan)
Flávia
Pavie
General Counsel & Chief
Compliance Officer
Eve Holding, Inc.
1400 General Aviation Drive,
Melbourne, FL 32935
(321) 751-5050
(Name and address, including zip code, and telephone number,
including
area code, of agent for service)
Copies to:
Paul T. Schnell
Thomas W. Greenberg
Skadden, Arps, Slate, Meagher &
Flom LLP
One Manhattan West
New York, NY 10001-8602
Tel: (212) 735-3000
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. (Check one):
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Large accelerated filer
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Accelerated filer
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☒
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Non-accelerated
filer
☐
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Smaller reporting company
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☐
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Emerging growth company
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☒
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities
Act.
☐
EXPLANATORY NOTE
This registration statement on Form S-8 (this “Registration
Statement”) is being filed for the purpose of registering
16,802,821 shares
of Common Stock, par value $0.001
per share, of
Eve Holding, Inc.
(the “Company”)
reserved for issuance under
the
Eve Holding, Inc.
2022 Omnibus Incentive Plan
(the “Plan”).
The Plan has been
approved by
the Company’s board of directors and
stockholders.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan
Information.*
Item 2. Registrant
Information and Employee Plan Annual
Information.*
*The
documents containing the information specified in this
Part I
will be sent or given to employees as specified by Rule 428(b)(1)
of the Securities Act
of 1933, as amended (the “Securities Act”).
Such documents need not be filed with the Securities and Exchange
Commission (the “SEC”) either as part of this registration
statement or as prospectuses or prospectus supplements pursuant to
Rule 424
of the Securities Act. These documents and the documents
incorporated by reference in this registration statement pursuant
to Item 3 of Part II
of this registration statement, taken together, constitute a
prospectus that meets the requirements of
Section 10(a) of
the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by Reference.
The following documents previously filed by the Company with the
SEC are incorporated by reference in this registration
statement:
(a) The
Company’s
prospectus, dated
January 18, 2023, filed on
January 20, 2023 pursuant to Rule 424(b) under the Securities
Act, relating to the Registration Statement on Form S-1, as amended
(File No.
333-265337),
which contains the
Company’s audited financial statements for the latest fiscal year
for which such statements have been filed;
(b) The
Company’s
Quarterly Reports
on Form 10-Q for the fiscal quarters
ended
March
31,
2022,
filed on
May
3,
2022,
June 30, 2022, filed on
August 4, 2022
(as
amended by the Form 10-Q/A filed on
December 8, 2022),
and September 30, 2022, filed on
December 23, 2022;
(c) The Company’s
Current Reports on Form 8-K filed on
February 4, 2022,
March
15, 2022,
March 18, 2022,
April 5, 2022,
May 6, 2022,
May 13, 2022
(as amended
by the Form 8-K/As
filed on
December 8, 2022
and
December 12, 2022),
September 8, 2022,
September 29, 2022
(as amended
by the Form 8-K/A filed on
November 14, 2022),
November 29, 2022,
and
December 22, 2022;
and
(d)
The description of the Company’s Common Stock, contained in
Exhibit 4.5
of
the Company’s
Annual Report on Form 10-K for the fiscal year ended
December 31,
2021,
filed on
February 15,
2022,
as amended by any amendments or reports filed for the purpose of
updating such description,
including
the description of the Company’s Common Stock set forth under the
heading “Description of
Securities”
contained in the Company’s Registration Statement on Form
S-1/A,
filed with the
SEC
on
January
13, 2023.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of
the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”),
prior to the filing of a post-effective amendment to this
registration statement that indicates that all securities offered
have been sold or that deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this
registration statement and to be part hereof from the date of
filing of such documents.
In no event, however, unless stated otherwise in the applicable
report, will any information that the Company has disclosed or will
disclose under Item 2.02 or 7.01 of any Current Report on
Form 8-K that
the Company may from time to time furnish to the SEC be
incorporated by reference into, or otherwise become a part of, this
Registration Statement.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this registration statement shall be
deemed to be modified or superseded for purposes of this
registration statement to the extent that a statement contained in
this registration statement, or in any other subsequently filed
document that also is or is deemed to be incorporated by reference
in this
registration statement, modifies or supersedes such prior
statement. Any statement contained in this registration statement
shall be deemed to be modified or superseded to the extent that a
statement contained in a subsequently filed document that is or is
deemed to be incorporated by reference in this registration
statement modifies or supersedes such prior statement. Any
statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this
registration statement.
Item 4.
Description of Securities.
Not
applicable.
Item 5.
Interests of Named Experts and Counsel.
Not
applicable.
Item 6.
Indemnification of Directors and Officers.
The General
Corporation Law of the State of Delaware (the
“DGCL”)
authorizes
corporations to limit or eliminate the personal liability of
directors of corporations and their stockholders for monetary
damages for breaches of directors’ fiduciary duties, subject to
certain exceptions. Our amended
and restated
certificate
of incorporation
(“Charter”)
includes a
provision that eliminates the personal liability of directors for
damages for any breach of fiduciary duty as a director except to
the extent such exemption from liability or limitation thereof is
not permitted under the DGCL
as
the same exists or may hereafter be amended.
Our
amended
and restated
bylaws
(“Bylaws”)
provide that the
Company must indemnify and advance expenses to the Company’s
directors and officers to the fullest extent authorized by
the DGCL.
The Company also is expressly authorized to carry directors’ and
officers’ liability insurance providing indemnification for our
directors, officers, and certain employees for some liabilities.
The Company believes that these indemnification and advancement
provisions and insurance are useful to attract and retain qualified
directors and executive officers.
The limitation
of liability, advancement and indemnification provisions in our
Charter and Bylaws may discourage stockholders from bringing
lawsuit against directors for breach of their fiduciary duty.
These provisions also
may have the effect of reducing the likelihood of derivative
litigation against directors and officers, even though such an
action, if successful, might otherwise benefit the Company and its
stockholders. In addition, investments in our
securities may be adversely
affected to the extent the Company pays the costs of settlement and
damage awards against directors and officer pursuant to these
indemnification provisions.
Item 7.
Exemption from Registration Claimed.
Not
applicable.
Item 8.
Exhibits.
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Exhibit
No.
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Description
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3.1
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Second Amended and Restated Certificate of Incorporation of Eve
Holding, Inc., dated as of May 9, 2022
(incorporated
by reference to Exhibit 3.1 to
the Company’s
Current Report
on
Form
8-K
filed May
13,
2022)
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3.2
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Amended and Restated Bylaws of Eve Holding, Inc., dated as of May
9, 2022
(incorporated
by reference to Exhibit 3.2
to the Company’s
Current
Report on Form
8-K,
filed
May 13,
2022)
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5.1
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Opinion of
Skadden, Arps, Slate, Meagher &
Flom LLP (including
consent of such firm)
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10.1
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Eve Holding,
Inc. 2022 Stock Incentive
Plan
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23.1
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Consent of
Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.1)
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23.2
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Consent of
PricewaterhouseCoopers LLP
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24.1
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Power of
Attorney (included on signature page)
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107
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Filing Fee
Table
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Item 9.
Undertakings.
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
(i) To
include any prospectus required by section
10(a)(3) of
the Securities Act;
(ii) To
reflect in the prospectus any facts or events arising after the
effective date of 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;
(iii) To
include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement; provided,
however, that
paragraphs
(a)(1)(i) and
(a)(1)(ii) of
this section do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section
15(d) of
the Exchange Act that are incorporated by reference in the
registration statement.
(2) That,
for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(b) The
undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the registrant’s annual report pursuant to section
13(a) or
section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee
benefit plan’s annual report pursuant to section
15(d) of
the Exchange Act) that is incorporated by reference in 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
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.
SIGNATURES
Pursuant to the
requirements of the Securities Act, the registrant certifies that
it has reasonable grounds to believe that it meets all of the
requirements for filing the Registration Statement on
Form S-8
and has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in
Melbourne,
Florida, on
January
25,
2023.
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EVE HOLDING, INC.
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By:
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/s/
Gerard J.
DeMuro
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Name:
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Gerard
J. DeMuro
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Title:
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Co-Chief
Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS
BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Gerard J.
DeMuro
and
Eduardo
Couto and
each
of them, severally, as his or her
true
and lawful attorneys-in-fact
and agents,
with full power of substitution and resubstitution,
for
them and in their name, place and stead, in any and all
capacities to sign in any
and all capacities this Registration Statement on
Form S-8
and any and all amendments (including post-effective amendments)
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, and each of them, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith, as fully to all
intents and purposes as they might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents
or any of them, or their substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the
requirements of the Securities Act, this registration statement has
been signed by the following persons in the capacities and on the
date indicated.
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Signature
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Title
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Date
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/s/
Gerard J.
DeMuro
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Co-Chief
Executive Officer
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January
25,
2023
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Gerard J.
DeMuro
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(Principal
Executive
Officer)
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/s/André
Duarte Stein
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Co-Chief
Executive Officer
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January
25,
2023
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André Duarte Stein
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(Principal
Executive
Officer)
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/s/
Eduardo
Couto
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Chief Financial
Officer
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January
25,
2023
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Eduardo
Couto
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(Principal
Financial
and
Accounting
Officer)
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/s/
Luis
Carlos Affonso
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Director
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January
25,
2023
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Luis
Carlos Affonso
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/s/
Michael
Amalfitano
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Director
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January
25,
2023
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Michael
Amalfitano
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/s/
Marion Clifton
Blakey
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Director
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January
25,
2023
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Marion Clifton
Blakey
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/s/
Paul
Eremenko
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Director
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January
25,
2023
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Paul
Eremenko
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/s/
Sergio
Pedreiro
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Director
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January
25,
2023
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Sergio
Pedreiro
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/s/
Kenneth C.
Ricci
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Director
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January
25,
2023
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Kenneth C.
Ricci
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