Securities Registration: Employee Benefit Plan (s-8)
04 January 2023 - 10:31PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on January 4, 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
AKOUSTIS TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Delaware |
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33-1229046 |
(State or other jurisdiction of
incorporation or
organization) |
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(I.R.S. Employer
Identification No.) |
9805 Northcross Center
Court, Suite A
Huntersville, NC |
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28078 |
(Address of principal executive offices) |
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(Zip Code) |
AKOUSTIS TECHNOLOGIES, INC. 2018 STOCK INCENTIVE
PLAN
(Full title of the plan)
Jeffrey B. Shealy
Chief Executive Officer
Akoustis Technologies, Inc.
9805 Northcross Center Court, Suite A
Huntersville, NC 28078
(Name and address of agent for service)
(704) 997-5735
(Telephone number, including area code, of
agent for service)
Copy to:
Sean M. Jones
Coleman Wombwell
K&L Gates LLP
300 South Tryon Street, Suite 1000
Charlotte, North Carolina 28202
(704) 331-7400
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.
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Large
accelerated filer ☐ |
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Accelerated
filer ☐ |
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Non-accelerated
filer ☒ |
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Smaller
reporting company ☒ |
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Emerging
growth company ☐ |
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 pursuant to
Section 7(a)(2)(B) of the Securities Act. ☐
EXPLANATORY NOTE
This Registration Statement
on Form S-8 is being filed by Akoustis Technologies, Inc. (the “Company” or “Registrant”) to register an additional
6,000,000 shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), for offer and sale
under the Akoustis Technologies, Inc. 2018 Stock Incentive Plan, as amended (the “Plan”), pursuant to an amendment to the
Plan approved by the Company’s stockholders on November 10, 2022 (the “Plan Amendment”). After taking into account the
shares added by the Plan Amendment, the aggregate number of shares of Common Stock that may be issued under the Plan is 12,000,000, which
includes 3,000,000 shares of Common Stock registered under the Registration Statement on Form S-8, File No. 333-235665, filed with the
Securities and Exchange Commission (the “SEC”) on November 4, 2019 (the “2019 Registration Statement”) and 3,000,000
shares of Common Stock previously registered under the Registration Statement on Form S-8, File No. 333-228451, filed with the SEC on
November 16, 2018 (together with the 2019 Registration Statement, the “Prior Registration Statements”), plus any shares subject
to any award granted under the Company’s previous compensation plans that are forfeited, cancelled, terminated expire or lapse for
any reason without the issuance of shares or pursuant to which such shares are reacquired by the Company.
In accordance with Instruction
E of Form S-8, the content of the Prior Registration Statements is incorporated herein by reference and made a part of this Registration
Statement on Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have
been filed by the Company with the SEC and are incorporated herein by reference:
| ● | Annual Report on Form 10-K for the fiscal year ended June 30, 2022, filed with the SEC on September 12,
2022; |
| ● | Quarterly Report on Form 10-Q for the quarter ended September 30, 2022, filed with the SEC on November
14, 2022; |
| ● | The description of the Company’s Common Stock contained in the Company’s Registration Statement
on Form 8-A, originally filed with the SEC pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), on March 10, 2017 (File No. 001-38029), including any further amendment or report filed hereafter for the purpose of updating
such description. |
All reports and other documents
filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date hereof, and prior to the filing
of a post-effective amendment 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 herein and to be part hereof from the date of filing of such reports
and documents. The Company is not incorporating by reference any reports or documents or portions thereof that are not considered to be
“filed” with the SEC.
Any statement contained herein
or 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 contained herein or in any other subsequently filed document which also
is or is deemed to be incorporated herein by reference modifies or supersedes such earlier 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 8. Exhibits.
Exhibit |
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Number |
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Description |
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4.1 |
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Articles of Conversion of the Company, as filed with the Nevada Secretary of State on December 15, 2016 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the SEC on December 16, 2016) |
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4.2 |
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Certificate of Conversion of the Company, as filed with the Delaware Secretary of State on December 15, 2016 (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed with the SEC on December 16, 2016) |
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4.3 |
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Certificate of Incorporation, as filed with the Delaware Secretary of State on December 15, 2016 (incorporated by reference to Exhibit 3.3 to the Company’s Current Report on Form 8-K filed with the SEC on December 16, 2016) |
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4.4 |
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Certificate of Amendment to the Certificate of Incorporation, as filed with the Delaware Secretary of State on November 4, 2019 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the SEC on November 6, 2019) |
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4.5 |
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Certificate of Amendment to the Certificate of Incorporation, as filed with the Delaware Secretary of State on November 10, 2022 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the SEC on November 14, 2022) |
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4.6 |
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Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.5 to the Company’s Quarterly Report on Form 10-Q filed with the SEC on May 1, 2020) |
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4.7 |
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Akoustis Technologies, Inc. 2018 Stock Incentive Plan (incorporated by reference to Appendix A to the Proxy Statement for the Company’s 2018 Annual Meeting of Stockholders filed with the SEC on September 18, 2018) |
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4.8 |
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Form of Restricted Stock Unit Award Agreement under the Akoustis Technologies, Inc. 2018 Stock Incentive Plan (incorporated by reference to Exhibit 4.10 to the Company’s Registration Statement on Form S-8 filed with the SEC on November 16, 2018) |
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4.9 |
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Form of Performance-Based Restricted Stock Unit Award Agreement under the Akoustis Technologies, Inc. 2018 Stock Incentive Plan (incorporated by reference to Exhibit 4.11 to the Company’s Registration Statement on Form S-8 filed with the SEC on November 16, 2018) |
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4.10 |
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Form of Nonqualified Option Award Agreement under the Akoustis Technologies, Inc. 2018 Stock Incentive Plan (incorporated by reference to Exhibit 4.12 to the Company’s Registration Statement on Form S-8 filed with the SEC on November 16, 2018) |
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4.11 |
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First Amendment to 2018 Stock Incentive Plan (incorporated by reference to Appendix B of the Company’s definitive proxy statement for its 2019 Annual Meeting of Stockholders, filed September 24, 2019) |
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4.12 |
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Second Amendment to 2018 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on November 14, 2022) |
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5.1 |
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Opinion of K&L Gates LLP, filed herewith |
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23.1 |
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Consent of Marcum LLP, filed herewith |
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23.2 |
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Consent of K&L Gates LLP (contained in Exhibit 5.1 of this Registration Statement and filed herewith) |
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24.1 |
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Power of Attorney (included on the signature page of this Registration Statement) |
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107 |
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Filing Fee Table |
SIGNATURES
Pursuant to the requirements of the Securities
Act, the Company 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 Huntersville,
State of North Carolina, on January 4, 2023.
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AKOUSTIS TECHNOLOGIES, INC. |
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By: |
/s/ Jeffrey B. Shealy |
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Jeffrey B. Shealy |
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President and Chief Executive Officer |
POWER
OF ATTORNEY
Each person whose signature
appears below constitutes and appoints Jeffrey B. Shealy and Kenneth E. Boller, and each of them, his true and lawful attorney-in-fact
and agent, each with full power of substitution and resubstitution, severally, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8, 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 and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them or their or his or her substitute or substitutes, may lawfully
do or cause to be done by virtue hereof. This power of attorney may be executed in counterparts.
Pursuant to the requirements
of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities indicated, in each
case on January 4, 2023:
Signature
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Title |
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/s/ Jeffrey B. Shealy |
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President and Chief Executive Officer |
Jeffrey B. Shealy |
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(Principal Executive Officer), Director |
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/s/ Kenneth E. Boller |
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Chief Financial Officer |
Kenneth E. Boller |
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(Principal Financial Officer and Accounting Officer) |
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/s/ Arthur E. Geiss |
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Co-Chairman of the Board |
Arthur E. Geiss |
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/s/ Jerry D. Neal |
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Co-Chairman of the Board |
Jerry D. Neal |
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/s/ Steven P. DenBaars |
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Director |
Steven P. DenBaars |
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/s/ Jeffrey K. McMahon |
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Director |
Jeffrey K. McMahon |
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/s/ Suzanne B. Rudy |
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Director |
Suzanne B. Rudy
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/s/ J. Michael McGuire |
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Director |
J. Michael McGuire |
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