As filed with the Securities and Exchange Commission on April
4, 2018
Registration Statement No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
______________________
ADOMANI, INC.
(Exact Name of Registrant as Specified in its Charter)
| Delaware |
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46-0774222 |
|
(State or Other Jurisdiction of
Incorporation or Organization) |
|
(I.R.S. Employer
Identification No.) |
4740 Green River Road, Suite 106
Corona, California 92880
(Address of Principal Executive Offices, including Zip Code)
______________________
ADOMANI, Inc. 2012 Stock Option and Stock Incentive Plan
ADOMANI, Inc. 2017 Equity Incentive Plan
(Full Title of the Plan)
______________________
Michael K. Menerey
4740 Green River Road, Suite 106
Corona, California 92880
(951) 407-9860
(Name, Address and Telephone Number, Including Area Code, of Agent
for Service
_____________________
Copies to:
Michael A. Hedge
K&L Gates LLP
1 Park Plaza, Twelfth Floor
Irvine, California 92614
(949) 253-0900
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 ☒ |
(Do not check if a smaller reporting company) |
Smaller reporting company ☐ |
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|
Emerging growth company ☒ |
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
|
Title of Securities
To Be Registered |
Amount To Be Registered(1) |
Proposed Maximum Offering Price Per Share |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee |
| Common Stock, par value $0.00001 per share |
|
|
|
|
| —2012 Stock Option and Stock Incentive Plan |
29,858,741(2) |
1.35(3) |
$40,309,300 |
$5,019 |
| —2017 Equity Incentive Plan |
17,042,127(4)(5) |
1.12(6) |
$19,087,182 |
$2,376 |
| Total: |
46,900,868 |
— |
$59,396,483 |
$7,395 |
| (1) |
|
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement on Form S-8 (the “Registration Statement”) also covers such additional shares of Common Stock, par value $0.00001 per share (the “Common Stock”), of ADOMANI, Inc. (the “Registrant”) that may become issuable under the ADOMANI, Inc. 2012 Stock Option and Stock Incentive Plan (the “2012 Plan”) and the ADOMANI, Inc. 2017 Equity Incentive Plan (the “2017 Plan”) by reason of certain corporate transactions or events, including any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant’s outstanding shares of Common Stock. |
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| (2) |
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Consists of the 29,858,741 shares of Common Stock reserved for issuance pursuant to stock option awards outstanding under the 2012 Plan as of the date of this Registration Statement. |
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| (3) |
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act, based on the weighted-average exercise price for the 29,858,741 shares of Common Stock subject to outstanding stock option awards under the 2012 Plan. |
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| (4) |
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Consists of the 17,042,127 shares of Common Stock reserved for issuance under the 2017 Plan. |
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| (5) |
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The number of shares of Common Stock reserved for issuance under the 2017 Plan automatically and cumulatively increase on January 1 of each year, beginning on January 1, 2018 and through and including January 1, 2027, by the lesser of (i) three percent (3%) of the total number of shares of the Registrant’s Common Stock outstanding on the immediately preceding December 31 and (ii) a number of shares of Common Stock determined by the Registrant’s Board of Directors. This explanation is provided for information purposes only and the issuance of such shares is not being registered on this Registration Statement. |
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| (6) |
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Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) under the Securities Act, based on the average of the high and low prices of the Common Stock as reported on the NASDAQ Capital Market on April 2, 2018, a date within 5 business days prior to the date of filing of this Registration Statement. |
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The document(s) containing the information specified
in Item 1 will be sent or given to participants in the ADOMANI, Inc. 2012 Stock Option and Stock Incentive Plan and ADOMANI, Inc.
2017 Equity Incentive Plan as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”).
Such documents are not being filed with the U.S. Securities and Exchange Commission (the “Commission”) 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 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 (the “Prospectus”).
Item 2. Registrant Information and Employee Plan Annual Information.
Any of the documents incorporated by reference
in Item 3 of Part II of this Registration Statement are also incorporated by reference in the Prospectus and are available, without
charge, upon written or oral request.
Such other documents required to be delivered
to employees pursuant to Rule 428(b) of the Securities Act shall also be available, without charge, upon written or oral request
directed to: ADOMANI, Inc., Attention: Chief Financial Officer, 4740 Green River Road, Suite 106, Corona, California 92880; telephone
number: (951) 407-9860.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents filed by the Registrant
with the Commission are incorporated by reference herein:
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(a) |
the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed with the Commission on March 12, 2018. |
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(b) |
All other reports filed* pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) since the end of the fiscal year covered by the Registrant’s Annual Report on Form 10-K referred to in (a) above. |
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(c) |
The description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form 8-A (File No. 001-38078) filed with the Commission on April 28, 2017 under the Exchange Act, including any amendment or report filed for the purpose of updating such description. |
* Any report (or portion
thereof) “furnished” on Form 8-K shall not be incorporated herein by reference.
In addition, all documents filed pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of
a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of filing of such documents. Unless expressly incorporated into this Registration
Statement, a report furnished but not filed on Form 8-K under the Exchange Act shall not be incorporated by reference into this
Registration Statement.
Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained in any subsequently filed document which also is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such 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.
Section 145 of the Delaware General Corporation
Law (the “DGCL”) permits a corporation to indemnify any person who is or has been a director, officer, employee or
agent of the corporation or who is or has been serving as director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise at the request of the corporation, against expenses (including, but not limited to, attorneys’
fees and disbursements and amounts paid in settlement or in satisfaction of judgments or as fines or penalties) actually and reasonably
incurred in connection with any such action, suit or proceeding, whether civil, criminal, administrative or investigative, in which
he/she may be involved by reason of the fact that he/she served or is serving in these capacities, if he/she acted in good faith
and in a manner he/she reasonably believed to be in or not opposed to the best interest of the corporation and, with respect to
any criminal action or proceeding, had no cause to believe his/her conduct was unlawful. In the case of an action, suit or proceeding
made or brought by or in the right of the corporation to procure a judgment in its favor, the corporation shall not indemnify such
person in respect of any claim, issue or matter as to which such person has been adjudged to be liable to the corporation, except
for such expenses as the court may allow. Any such person who has been wholly successful on the merits or otherwise with respect
to any such action, suit or proceeding or with respect to any such claim, issue or matter therein, shall be indemnified against
all expenses actually and reasonably incurred in connection therewith. Expenses (including attorneys’ fees) incurred by an
officer or director in defending any civil, criminal, administrative, or investigative action, suit, or proceeding may be advanced
by the corporation upon receipt of an undertaking by such person to repay such amount if it is ultimately determined that such
person is not entitled to indemnification by the corporation under Section 145 of the DGCL.
Section
102(b)(7) of the DGCL provides that a corporation may eliminate or limit the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate
or limit the liability of a director (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) under
Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. No such provision
shall eliminate or limit the liability of a director for any act or omission occurring prior to the date when such provision becomes
effective. We have entered into indemnification agreements with each of our directors which may, in some cases, be broader than
the specific indemnification provisions contained under Delaware law. We also expect to maintain standard insurance policies that
provide coverage (1) to our directors and officers against loss arising from claims made by reason of breach of duty or other wrongful
act and (2) to us with respect to indemnification payments we may make to such officers and directors.
The Registrant’s Bylaws and Amended and
Restated Certificate of Incorporation authorize the indemnification of directors and officers to the fullest extent permitted by
the DGCL; provided, however, that, except as provided in Section 7.2 of the Bylaws, the Registrant shall indemnify
such person seeking indemnity in connection with any proceeding initiated by such person only if (a) such indemnification
is expressly required to be made by law, (b) the proceeding (or part thereof) was authorized by the board of directors, (c) such
indemnification is provided by the corporation, in its sole discretion, pursuant to the powers vested in the corporation under
the DGCL, or (d) the proceeding (or part thereof) is brought to establish or enforce a right to indemnification or advancement
under an indemnity agreement or any other statute or law or otherwise as required under Section 145 of the DGCL.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Item 9. Undertakings.
(a) The undersigned Registrant
hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of
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) of the Securities Act if, in the aggregate, the changes in volume and price represent
no more than 20 percent 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) 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 Sections 13 or 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 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 Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Corona, State of California, on the 4th day of April, 2018.
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ADOMANI, INC. |
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By: |
/s/ James L. Reynolds |
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James L. Reynolds |
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Chief Executive Officer |
POWER OF ATTORNEY
Each person whose signature appears below constitutes
and appoints James L. Reynolds and Michael K. Menerey his true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him and in his name, place or stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, 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 he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates
indicated.
| Signature |
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Title |
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Date |
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| /s/ James L. Reynolds |
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Chief Executive Officer, Chairman and Director |
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April 4, 2018 |
| James L. Reynolds |
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(Principal Executive Officer) |
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| /s/ Michael K. Menerey |
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Chief Financial Officer and Director |
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April 4, 2018 |
| Michael K. Menerey |
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(Principal Financial Officer and Principal |
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Accounting Officer) |
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| /s/ Gary W. Nettles |
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Director |
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April 4, 2018 |
| Gary W. Nettles |
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| /s/ Janet L. Boydell |
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Director |
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April 4, 2018 |
| Janet L. Boydell |
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| /s/ John F. Perkowski |
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Director |
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April 4, 2018 |
| John F. Perkowski |
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