XOS Xos Inc

As filed with the Securities and Exchange Commission on January 31, 2024

Registration No. 333-                       

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

Xos, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware		98-1550505
(State or other jurisdiction of incorporation or organization)		(IRS Employer Identification No.)
3550 Tyburn Street, Unit 100 Los Angeles, California		90065
(Address of Principal Executive Offices)		(Zip Code)

 

Xos, Inc. 2021 Equity Incentive Plan

Xos, Inc. 2021 Employee Stock Purchase Plan

(Full title of the plan)

 

Christen Romero

General Counsel

Xos, Inc.

3550 Tyburn Street

Los Angeles, California 90065

Tel: (818) 316-1890

(Telephone number, including area code, of agent for service)

 

Copies to:

 

Dave Peinsipp

Logan Tiari

Cooley LLP

3 Embarcadero Center, 20th Floor

San Francisco, California 94111

Tel: (415) 693-2000

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act:

 

Large accelerated filer	☐		Accelerated filer	☐
Non-accelerated filer	☒		Smaller reporting company	☒
			Emerging growth company	☒

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.

 

 

 

EXPLANATORY NOTE

 

Xos, Inc. (the “registrant”) is filing this Registration Statement on Form S-8 with the Securities and Exchange Commission (the “Commission”) to register the offering of (i) 463,342 additional shares of registrant’s common stock, par value $0.0001 per share (the “Common Stock”), reserved for issuance under the Xos, Inc. 2021 Equity Incentive Plan (the “2021 Plan”), which consists of (A) 297,061 additional shares of Common Stock pursuant to the provisions of the 2021 Plan providing for an automatic increase in the number of shares of Common Stock reserved and available for issuance under the 2021 Plan on January 1, 2024 and (B) 166,281 additional shares of Common Stock underlying restricted stock units that were previously granted under the 2021 Plan and forfeited because of the failure to vest as of January 23, 2024; and (ii) 89,118 additional shares of Common Stock reserved for issuance under the Xos, Inc. 2021 Employee Stock Purchase Plan (the “2021 ESPP” and together with the 2021 Plan, the “Plans”) pursuant to the provisions of the 2021 ESPP providing for an automatic increase in the number of shares of Common Stock reserved and available for issuance under the 2021 ESPP on January 1, 2024. In accordance with General Instruction E of Form S-8, and only with respect to the Common Stock being registered under the Plans, this Registration Statement hereby incorporates by reference the contents of the Registration Statements on Form S-8 (File Nos. 333-260502, 333-267714 and 333-271450), filed by the registrant with the Commission on October 26, 2021, October 3, 2022 and April 26, 2023, respectively.

 

 

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 hereby incorporated by reference in this registration statement.

 

(a) the registrant’s annual report on Form 10-K for the fiscal year ended December 31, 2022, filed with the Commission on March 31, 2023;

 

(b) the registrant’s quarterly reports on Form 10-Q for the fiscal quarters ended March 31, 2023, June 30, 2023 and September 30, 2023, filed with the Commission on May 11, 2023, August 11, 2023 and November 9, 2023, respectively;

 

(c) the registrant’s current reports on Form 8-K filed with the Commission on March 8, 2023, May 10, 2023 (except for the information furnished under Item 2.02 and the exhibits thereto), June 1, 2023, June 6, 2023, June 8, 2023, June 23, 2023, June 28, 2023, November 22, 2023, December 1, 2023, December 6, 2023 and January 12, 2024; and

 

(d) the description of the registrant’s securities contained in Exhibit 4.4 of the registrant’s annual report on Form 10-K for the fiscal year ended December 31, 2022, filed with the Commission on March 31, 2023.

  

All reports and other documents filed by the registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, other than current reports furnished under Item 2.02 and Item 7.01 of Form 8-K and any exhibits furnished on such form that relate to such items, after the date of this registration statement, and prior to the filing of a post-effective amendment that indicates that all securities offered hereby have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this registration statement from the date of filing of such reports and documents. Any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement herein or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not constitute a part of this registration statement, except as so modified or superseded.

 

 

Item 8. Exhibits.

 

Exhibit No.		Description
4.1		Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed on August 26, 2021).
4.2		Certificate of Amendment to Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed on December 6, 2023).
4.3		Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Current Report on Form 8-K filed on August 26, 2021).
5.1*		Opinion of Cooley LLP.
23.1*		Consent of Grant Thornton LLP.
23.2*		Consent of WithumSmith+Brown, PC.
23.3*		Consent of Cooley LLP (included in Exhibit 5.1).
24.1*		Power of Attorney (contained on the signature page hereto).
99.1		Xos, Inc. 2021 Equity Incentive Plan (incorporated by reference to Exhibit 10.6 of the Company’s Current Report on Form 8-K filed on August 26, 2021).
99.2		Xos, Inc. 2021 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.7 of the Company’s Current Report on Form 8-K filed on August 26, 2021).
99.3		Form of Global Option Grant Notice (incorporated by reference to Exhibit 10.6a of the Company’s Current Report on Form 8-K filed on August 26, 2021).
99.4		Form of Global RSU Award Grant Notice (incorporated by reference to Exhibit 10.6b of the Company’s Current Report on Form 8-K filed on August 26, 2021).
107*		Filing Fee Table.

 

*

Filed herewith.

 

 

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-8, and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Los Angeles, State of California on January 31, 2024.

 

	XOS, INC.
	/s/ Dakota Semler
	Name:	Dakota Semler
	Title:	Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Dakota Semler, Christen Romero and Liana Pogosyan, and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments, to this registration statement, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or his 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 below by the following persons in the capacities and on the date indicated.

 

Signature		Title		Date
/s/ Dakota Semler		Chief Executive Officer, Chairman		January 31, 2024
Dakota Semler		(Principal Executive Officer)
/s/ Liana Pogosyan		Vice President of Finance and Acting Chief Financial Officer		January 31, 2024
Liana Pogosyan		(Principal Financial Officer and Principal Accounting Officer)
/s/ Giordano Sordoni		Chief Operating Officer, Director		January 31, 2024
Giordano Sordoni
/s/ Stuart Bernstein		Director		January 31, 2024
Stuart Bernstein
/s/ Alice K. Jackson		Director		January 31, 2024
Alice K. Jackson
/s/ Burt Jordan		Director		January 31, 2024
Burt Jordan
/s/ George N. Mattson		Director		January 31, 2024
George N. Mattson
/s/ Ed Rapp		Director		January 31, 2024
Ed Rapp

 

 

4

 

Exhibit 5.1

 

 

David G. Peinsipp

+1 305 724 0538

dpeinsipp@cooley.com

 

January 31, 2024

 

Xos, Inc.

3550 Tyburn Street, Unit 100

Los Angeles, CA 90065

 

Ladies and Gentlemen:

 

We have acted as counsel to Xos, Inc., a Delaware corporation (the “Company”), in connection with the filing by the Company of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) covering the offering of up to 552,460 shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (“Common Stock”), consisting of (i) 463,342 shares of Common Stock issuable pursuant to the Company’s 2021 Equity Incentive Plan (the “2021 EIP”) and (ii) 89,118 shares of Common Stock issuable pursuant to the Company’s 2021 Employee Stock Purchase Plan (together with the 2021 EIP, the “Plans”).

 

In connection with this opinion, we have examined and relied upon (a) the Registration Statement and related prospectuses, (b) the Plans, (c) the Company’s certificate of incorporation and bylaws, each as currently in effect, and (d) such other records, documents, opinions, certificates, memoranda and instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the accuracy, completeness and authenticity of certificates of public officials, and the due authorization, execution and delivery of all documents by all persons other than the Company where authorization, execution and delivery are prerequisites to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified such matters.

 

We note that the Company was initially incorporated under the laws of the Cayman Islands and was domesticated (the “Domestication”) as a corporation in the State of Delaware in accordance with Section 388 of the General Corporation Law of the State of Delaware (the “DGCL”). We have assumed all matters determinable under the laws of the Cayman Islands, including without limitation that the approval of the Plans by the board and shareholders of the Company as a Cayman Islands exempted company prior to the Domestication were done in accordance with the applicable governing documents of the Company and the laws of the Cayman Islands.

 

Our opinion is expressed only with respect to the DGCL. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.

 

 

Cooley LLP   3 Embarcadero Center   20th Floor   San Francisco, CA 94111-4004
t: (415) 693-2000   f: (415) 693-2222   cooley.com

 

 

 

 

Xos, Inc.
January 31, 2024

Page Two

 

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plans, the Registration Statement and the related prospectuses, will be validly issued, fully paid and nonassessable (except as to Shares issued pursuant to deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).

 

This opinion is limited to the matters expressly set forth in this letter, and no opinion should be implied, or may be inferred, beyond the matters expressly stated. This opinion speaks only as to law and facts in effect or existing as of the date hereof and we have no obligation or responsibility to update or supplement this opinion to reflect any facts or circumstances that may hereafter come to our attention or any changes in law that may hereafter occur.

 

We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder.

 

Sincerely,

 

Cooley LLP

 

By:	/s/ David G. Peinsipp
	David G. Peinsipp

 

 

Cooley LLP   3 Embarcadero Center   20th Floor   San Francisco, CA 94111-4004
t: (415) 693-2000   f: (415) 693-2222   cooley.com

 

 

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We have issued our report dated March 31, 2023 with respect to the consolidated financial statements of Xos, Inc. included in the Annual Report on Form 10-K for the year ended December 31, 2022, which are incorporated by reference in this Registration Statement. We consent to the incorporation by reference of the aforementioned report in this Registration Statement.

 

/s/ GRANT THORNTON LLP

 

Los Angeles, California

January 31, 2024

Exhibit 23.2

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 30, 2022, relating to the consolidated financial statements of Xos, Inc. and Subsidiaries, appearing in the entity’s Annual Report on Form 10-K for the year ended December 31, 2022.

 

/s/ WithumSmith+Brown, PC

 

Irvine, California

January 31, 2024

 

 

Exhibit 107

 

Calculation of Filing Fee Table

 

Form S-8
(Form Type)

 

Xos, Inc.
(Exact Name of Registrant as Specified in its Charter)

 

Table 1: Newly Registered Securities

 

Security Type		Security Class Title		Fee Calculation Rule		Amount Registered(1)				Proposed Maximum Offering Price Per Unit				Maximum Aggregate Offering Price				Fee Rate				Amount of Registration Fee
Equity		Common Stock, par value $0.0001 per share		Other			463,342	(2)		$	8.09	(3)		$	3,748,436.78				0.00014760			$	553.27
Equity		Common Stock, par value $0.0001 per share		Other			89,118	(4)		$	6.88	(5)		$	613,131.84				0.00014760			$	90.50
Total Offering Amounts														$	4,361,568.62							$	643.77
Total Fee Offsets																						$	643.77
Net Fee Due																						$	0

 

(1)

Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers an indeterminate number of additional shares that may be issued to adjust the number of shares issued pursuant to the plans described herein in the event of a stock dividend, stock split, reverse stock split, extraordinary dividend, extraordinary distribution, recapitalization, reorganization, merger, combination, consolidation, split-up, spin-off, combination, exchange of shares, rights offering, separation, reorganization, liquidation or similar event.

(2)

Represents shares of the registrant’s Common Stock that were added to the shares available for issuance under the Xos, Inc. 2021 Equity Incentive Plan (the “2021 Plan”), which consists of (A) 297,061 additional shares of Common Stock reserved pursuant to the “evergreen” provision under the 2021 Plan and (B) 166,281 additional shares of Common Stock underlying restricted stock units that were previously granted under the 2021 Plan and forfeited because of the failure to vest as of January 23, 2024.

(3)

Estimated pursuant to Rules 457(c) and 457(h) under the Securities Act, solely for the purposes of calculating the registration fee and based on the average of the high and low prices of the registrant’s Common Stock as reported on the Nasdaq Capital Market on January 25, 2024, which date is within five business days prior to the filing of this registration statement.

(4)

Represents shares of the registrant’s Common Stock that were added to the shares available for issuance under the Xos, Inc. 2021 Employee Stock Purchase Plan (the “2021 ESPP”), which consist of 89,118 additional shares of Common Stock reserved pursuant to the “evergreen” provision under the 2021 ESPP.

(5)

Estimated pursuant to Rules 457(c) and 457(h) under the Securities Act, solely for the purposes of calculating the registration fee and based on $6.88, which is 85% of the average of the high and low prices of the registrant’s Common Stock as reported on the Nasdaq Capital Market on January 25, 2024, which date is within five business days prior to the filing of this registration statement. Pursuant to the 2021 ESPP, the purchase price of the shares of the registrant’s Common Stock will not be less than the lesser of (A) 85% of the fair market value of the shares of Common Stock on the first day of an offering period or (B) 85% of the fair market value of the shares of Common Stock on the applicable purchase date.

 

 

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

Rule 457(p)

Fee Offset Claims

Xos, Inc.

S-1

333-264258(1)

April 13, 2022

$

643.77

Equity

Common Stock, par value $0.0001 per share

2,630,039

(2)

$

6,943,303.75

(2)

Fee Offset Sources

Xos, Inc.

S-1

333-264258(1)

April 13, 2022

$

643.77

 

(1)

The registrant previously paid a registration fee of $3,955 in connection with the registration of the resale of up to 16,160,214 shares of registrant’s common stock, par value $0.0001 per share, with a proposed maximum aggregate offering price of $42,662,965, under the Registration Statement on Form S-1, initially filed on April 13, 2022 (File No. 333-264258) by Xos, Inc. (the “Prior Registration Statement”). The registrant has terminated any offering that included the unsold securities under the Prior Registration Statement. In accordance with Rule 457(p) under the Securities Act, the total amount of the registration fee due upon the initial filing of this Registration Statement can be offset by $2,550.18, representing the fee associated with 10,420,124 unsold shares of registrant’s common stock, par value $0.0001 per share, from the Prior Registration Statement. In accordance with Rule 457(p) under the Securities Act, the registrant is using $643.77 of the unused filing fee from the Prior Registration Statement to offset the registration fee payable in connection with this Registration Statement. Accordingly, no additional registration fee is due to be paid at this time.

(2)	The registrant effected a 1-for-30 reverse stock split on December 6, 2023 (the “Reverse Split”). References in this Table 2 to security or aggregate offering amounts have not been adjusted to reflect the Reverse Split.

 

 

---