FUV Arcimoto Inc

As filed with the Securities and Exchange Commission on July 27, 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

 

ARCIMOTO, INC.

(Exact name of registrant as specified in its charter)

 

Oregon		26-1449404
(State of incorporation)		(IRS Employer Identification No.)

 

2034 West 2^nd Avenue

Eugene, Oregon 97402

(Address, including zip code, of registrant’s principal executive offices)

 

Arcimoto, Inc. 2022 Omnibus Stock Incentive Plan

(Full title of the plan)

 

Christina J. Cook

Chief Financial Officer

2034 West 2^nd Avenue

Eugene, Oregon 97402

(541) 683-6293

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

Copies to:

 

W. David Mannheim

Michael K. Bradshaw, Jr.

Nelson Mullins Riley & Scarborough LLP

301 Hillsborough Street, Suite 1400

Raleigh, North Carolina 27603

(919) 329-3800

 

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

 

This Registration Statement on Form S-8 (this “Registration Statement”) is being filed by Arcimoto, Inc., an Oregon corporation (the “Company” or “Registrant”), to register an additional 1,500,000 shares of its common stock, no par value per share (the “Common Stock”), for issuance under the Arcimoto, Inc. 2022 Omnibus Stock Incentive Plan (the “2022 Stock Plan”), which Common Stock is in addition to the 2,000,000 shares of Common Stock registered on the Registrant’s Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on October 3, 2022 (File No. 333-267715) (the “Prior Registration Statement”). This Registration Statement relates to securities of the same class as the securities issuable under the 2022 Stock Plan that were registered on the Registrant’s Prior Registration Statement. Pursuant to General Instruction E to Form S-8, the contents of the Prior Registration Statement are incorporated by reference and made part of this Registration Statement, except to the extent supplemented, amended or superseded by the information set forth herein.

 

 

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The Registrant will provide all participants in the Arcimoto, Inc. 2022 Omnibus Stock Incentive Plan with the document(s) containing the information required by Part I of Form S-8, as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the “Commission”) under the Securities Act. In accordance with Rule 428 of the Securities Act, the Registrant has not filed such document(s) with the Commission, but such document(s) (along with the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof) shall constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. The Registrant shall maintain a file of such documents in accordance with the provisions of Rule 428(a)(2) of the Securities Act. Upon request, the Registrant shall furnish to the Commission or its staff a copy or copies of all of the documents included in such file.

 

 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents previously filed by the Registrant with the Securities and Exchange Commission (the “Commission”) are incorporated herein by reference:

 

(a)

the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the Commission on April 14, 2023;

 

(b)

the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2023, filed with the Commission on May 22, 2023;

 

(c)

the Registrant’s Current Reports on Form 8-K filed with the Commission on January 19, 2023, January 23, 2023, February 21, 2023, February 22, 2023, February 23, 2023, March 1, 2023, April 20, 2023, May 23, 2023, May 30, 2023, June 2, 2023, June 12, 2023 (as amended June 13, 2023), June 21, 2023, and July 21, 2023, in each case only to the extent filed and not furnished; and

 

(d)

the description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form 8-A filed with the Commission on September 21, 2017, as supplemented and updated by the description of our common stock set forth in Exhibit 4.2 of our Annual Report on Form 10-K for the year ended December 31, 2022, including any amendment or report filed for the purpose of updating such description.

 

All documents filed, but not furnished, by the Registrant 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 that indicates that all securities offered under this Registration Statement have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. In no event, however, will any of the information, including exhibits, that the Registrant discloses under Item 2.02 and Item 7.01 of any report on Form 8-K that has been or may be, from time to time, furnished to the Commission, be incorporated by reference into or otherwise become a part of this Registration Statement.

 

Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained 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 statement so modified or superseded shall not be deemed to constitute a part hereof except as so modified or superseded.

 

 

Item 8. Exhibits.

 

The following exhibits are filed as part of this Registration Statement:

 

Exhibit No.		Description
4.1		Second Amended and Restated Articles of Incorporation of Arcimoto, Inc. (incorporated by reference to Exhibit 3.1(a) of Registrant’s Form 10-K filed with the Commission on March 29, 2019).
4.2		Articles of Amendment to the Second Amended and Restated Articles of Incorporation of Arcimoto, Inc. (incorporated by reference to Exhibit 3.1(b) of Registrant’s Form 10-K filed with the Commission on March 29, 2019).
4.3		Second Articles of Amendment to the Second Amended and Restated Articles of Incorporation of Arcimoto, Inc. (incorporated by reference to Exhibit 3.1(c) of Registrant’s Form 8-K filed with the Commission on May 16, 2019).
4.4		Third Articles of Amendment to the Second Amended and Restated Articles of Incorporation of Arcimoto, Inc. (incorporated by reference to Exhibit 3.1(d) of Registrant’s Form 10-K filed with the Commission on March 31, 2022).
4.5		Fourth Articles of Amendment to the Second Amended and Restated Articles of Incorporation of Arcimoto, Inc. (incorporated by reference to Exhibit 3.1 of Registrant’s Form 8-K filed with the Commission on November 14, 2022).
4.6		Second Amended and Restated Bylaws of Arcimoto, Inc. (incorporated by reference to Exhibit 2.2 of Registrant’s Form 1-A filed with the Commission on August 8, 2017).
5.1*		Opinion of Nelson Mullins Riley & Scarborough LLP.
23.1*		Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm
23.2*		Consent of dbbmckennon, Independent Registered Public Accounting Firm.
23.3*		Consent of Nelson Mullins Riley & Scarborough LLP (included in Exhibit 5.1).
24.1*		Power of Attorney (included on the signature page to this Registration Statement on Form S-8).
99.1		Arcimoto, Inc. 2022 Omnibus Stock Incentive Plan (incorporated by reference to Exhibit 10.1 of Registrant’s Form 10-Q filed with the Commission on August 15, 2022).
99.2*		Amendment to Arcimoto, Inc. 2022 Omnibus Stock Incentive Plan.
99.3		Form of Stock Option Award Agreement under the Arcimoto, Inc. 2022 Omnibus Stock Incentive Plan (incorporated by reference to Exhibit 10.2 of Registrant’s Form 10-Q filed with the Commission on August 15, 2022).
107.1*		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 Eugene, State of Oregon, on the 27^th day of July, 2023.

 

	ARCIMOTO, INC.
	By:	/s/ Christopher W. Dawson
		Christopher W. Dawson
		Chief Executive Officer

 

POWER OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints Christopher W. Dawson and Christina J. Cook, and each of them, his or her true and lawful attorney-in-fact and agent, 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 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, as fully to all intents and purposes as he might or would 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.

 

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		Capacity		Date
/s/ Christopher W. Dawson		Chief Executive Officer and Director		July 27, 2023
Christopher W. Dawson		(principal executive officer)
/s/ Christina J. Cook		Chief Financial Officer		July 27, 2023
Christina J. Cook		(principal financial and accounting officer)
/s/ Mark D. Frohnmayer		Chairman of the Board, Chief Vision Officer		July 27, 2023
Mark D. Frohnmayer
/s/ Joshua S. Scherer		Lead Independent Director		July 27, 2023
Joshua S. Scherer
/s/ Jesse G. Eisler		Director		July 27, 2023
Jesse G. Eisler
/s/ Dan M. Creed		Director		July 27, 2023
Dan M. Creed

 

II-3

Exhibit 5.1

 

	NELSON MULLINS RILEY & SCARBOROUGH LLP ATTORNEYS AND COUNSELORS AT LAW
	301 Hillsborough Street, Suite 1400 Raleigh, NC 27603 T: 919.329.3800 F: 919.329.3799 nelsonmullins.com

 

July 27, 2023

 

Arcimoto, Inc.

2034 West 2nd Avenue

Eugene, Oregon 97402

 

Ladies and Gentlemen:

 

We have acted as counsel to Arcimoto, Inc., an Oregon corporation (the “Company”), in connection with the preparation and filing by the Company of a Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “SEC”), covering the offering of up to an aggregate of 1,500,000 shares of the Company’s Common Stock, no par value (the “Shares”), issuable under the Arcimoto, Inc. 2022 Omnibus Stock Incentive Plan, as amended (the “2022 Plan”). This opinion letter is furnished pursuant to the requirement of Item 601(b)(5) of Regulation S-K promulgated by the SEC.

 

In reaching the opinions set forth herein, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of such documents and records of the Company and such statutes, regulations and other instruments, certificates and records as we deem necessary or advisable for the purposes of this opinion letter, including, without limitation, the 2022 Plan, the Company’s Second Amended and Restated Articles of Incorporation, as amended, and Second Amended and Restated Bylaws and certain resolutions adopted by the Company’s board of directors.

 

As to any facts material to our opinions, we have made no independent investigation or verification of such facts and have relied, to the extent that we deem such reliance proper, on certificates and oral or written statements and other information of or from officers and representatives of the Company and public officials and on factual information included in the Company’s filings with the SEC. We have assumed the completeness and authenticity of all documents submitted to us as originals, the completeness and conformity to the originals of all documents submitted to us as copies thereof, the genuineness of all signatures, the legal capacity and mental competence of natural persons, and that all information contained in all documents reviewed by us is true, correct and complete. In addition, we have assumed that the Shares will be issued in accordance with the 2022 Plan and that the Company will receive the authorized consideration for the issuance of the Shares (in an amount not less than the par value thereof).

 

California | Colorado | District of Columbia | Florida | Georgia | Illinois | Maryland | Massachusetts

Minnesota | New York | North Carolina | Ohio | Pennsylvania | South Carolina | Tennessee | Texas | Virginia | West Virginia

 

 

Arcimoto, Inc.

July 27, 2023

Page 2

 

On the basis of the foregoing, and subject to the foregoing qualifications, assumptions and limitations and the further limitations set forth below, we are of the opinion that the Shares have been duly authorized and, when issued and delivered in accordance with the 2022 Plan, will be validly issued, fully paid and nonassessable.

 

This opinion letter is rendered as of the date hereof, and we assume no obligations to advise you of changes in law or fact (or the effect thereof on the opinions expressed herein) that hereafter may come to our attention. We hereby consent to the filing of this opinion letter with the SEC as Exhibit 5.1 to the Registration Statement. In giving this 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 SEC.

 

Our opinions are based upon and limited to the Oregon Business Corporation Act, and no opinion is expressed as to the laws of any other jurisdiction. We do not find it necessary for the purposes of this opinion, and accordingly we do not purport to cover herein, the application of the securities or “Blue Sky” laws of the various states to the issuance and sale of any of the Shares.

 

	Sincerely,
	/s/ Nelson Mullins Riley & Scarborough LLP
	Nelson Mullins Riley & Scarborough LLP

 

 

 

 

Exhibit 23.1

 

Deloitte & Touche LLP 1125 Northwest Couch Street Suite 600 Portland, OR 97209-4156 USA Tel:    +1 503 222 1341 Fax:   +1 503 224 2172 www.deloitte.com

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Form S-8 of our report dated April 14, 2023 relating to the financial statements of Arcimoto, Inc. appearing in the Annual Report on Form 10-K of Arcimoto, Inc. for the year ended December 31, 2022.

 

 

Portland, OR

 

July 27, 2023

 

 

Exhibit 23.2

 

 

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Registration Statement of Arcimoto, Inc. on Form S-8 pertaining to Arcimoto, Inc. 2022 Omnibus Stock Incentive Plan, of our report dated March 31, 2022, relating to the financial statements of Arcimoto, Inc. for the year ended December 31, 2021, included in its Annual Report on Form 10-K for the year ended December 31, 2021.

 

/s/ dbbmckennon   

 

Newport Beach, California

July 27, 2023  

 

 

 

 

 

Exhibit 99.2

 

AMENDMENT TO

ARCIMOTO, INC.

2022 OMNIBUS STOCK INCENTIVE PLAN

 

THIS AMENDMENT (this “Amendment”) is made as of June 16, 2023 (the “Effective Date”) to the ARCIMOTO, INC. 2022 OMNIBUS STOCK INCENTIVE PLAN (as amended, the “Plan”).

 

1. All capitalized terms used herein without definition shall have the respective meanings ascribed thereto in the Plan.

 

2. On and after the Effective Date, the Plan shall be amended as hereinafter set forth:

 

a.

Section 3(a) of the Plan is hereby amended by deleting the number “two million (2,000,000)” in the first sentence thereof and substituting therein in its entirety “three and a half million (3,500,000)”.

 

3. Except as expressly modified by this Amendment, all of the terms and conditions of the Plan shall continue unchanged in full force and effect.

 

[Signature page follows]

 

 

As approved by the Board of Directors of Arcimoto, Inc. on April 19, 2023.

 

	ARCIMOTO, INC.
	By:	/s/ Christopher W. Dawson
	Name:	Christopher W. Dawson
	Title:	Chief Executive Officer

 

[Amendment to Arcimoto, Inc. 2022 Omnibus Stock Incentive Plan]

 

 

 

Exhibit 107.1

 

Calculation of Filing Fee Tables

 

FORM S-8

REGISTRATION STATEMENT UNDER

THE SECURITIES ACT OF 1933

 

ARCIMOTO, 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				Proposed Maximum Offering Price Per Unit				Maximum Aggregate Offering Price				Fee Rate				Amount of Registration Fee
Equity			Common stock, no par value per share				Other(2)				1,500,000	(1)		$	1.45	(2)		$	2,175,000			$	0.00011020			$	239.69
Total Offering Amounts																		$	2,175,000							$	239.69
Total Fee Offsets																											-
Net Fee Due																										$	239.69

 

(1)

Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Common Stock, no par value per share (“Common Stock”), of Arcimoto, Inc. (the “Registrant”) that become issuable under the Arcimoto, Inc. 2022 Omnibus Stock Incentive Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of Common Stock.

 

(2)

Estimated in accordance with Rules 457(c) and 457(h) under the Securities Act solely for the purpose of calculating the registration fee on the basis of $1.45 per share, which is the average of the high and low prices of the Registrant’s Common Stock on July 24, 2023, as reported on The Nasdaq Global Market.

 

 

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