As filed with the U.S. Securities and Exchange Commission on March 14, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ARCHER AVIATION INC.
(Exact name of registrant as specified in its charter)
Delaware | 85-2730902 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
1880 Embarcadero Road
Palo Alto, CA 94303
(650) 272-3233
(Address of principal executive offices, including zip code)
2021 Equity Incentive Plan
2021 Employee Stock Purchase Plan
(Full titles of the plans)
Brett Adcock
Adam Goldstein
Co-Chief Executive Officers and Co-Chairmen
Archer Aviation Inc.
1880 Embarcadero Road
Palo Alto, CA 94303
(650) 272-3233
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Patrick V. Grilli | Andy Missan |
Ran D. Ben-Tzur | Eric Lentell |
Fenwick & West LLP | Archer Aviation Inc. |
801 California Street | 1880 Embarcadero Road |
Mountain View, CA 94041 | Palo Alto, CA 94303 |
(650) 988-8500 | (650) 272-3233 |
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 x | Smaller reporting company x |
Emerging growth company x |
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. ¨
REGISTRATION OF ADDITIONAL SHARES PURSUANT TO GENERAL INSTRUCTION E
Archer Aviation Inc. (the “Registrant”) is filing this Registration Statement with the Securities and Exchange Commission (the “Commission”) to register (a) 3,255,791 additional shares of Class A common stock, par value $0.0001 per share (the “Class A Common Stock”) available for issuance under the Registrant’s 2021 Equity Incentive Plan (the “2021 Plan”), pursuant to the provision of the 2021 Plan providing for an annual automatic increase in the number of shares reserved for issuance under the 2021 Plan and (b) 1,627,895 additional shares of Class A Common Stock available for issuance under the Registrant’s 2021 Employee Stock Purchase Plan (the “Purchase Plan”), pursuant to the provision of the Purchase Plan providing for an annual automatic increase in the number of shares reserved for issuance under the Purchase Plan.
In accordance with General Instruction E of Form S-8, and only with respect to the Class A Common Stock that is issuable under the 2021 Plan and the Purchase Plan, this Registration Statement hereby incorporates by reference the contents of the Registrant’s Registration Statement on Form S-8 filed with the Commission on December 8, 2021 (Registration No. 333-261547), to the extent not superseded hereby. In accordance with the instructional note to Part I of Form S-8 as promulgated by the Commission, the information specified by Part I of Form S-8 has been omitted from this Registration Statement.
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 pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), are incorporated by reference into this Registration Statement (other than information in such filings that was “furnished”
under applicable Commission rules rather than “filed”):
(a) The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2021, filed with the Commission on March 14, 2022, pursuant to Section 13(a) of the Exchange Act;
(b) The Registrant’s Current Reports on Form 8-K filed with the SEC on January 21, 2022, February 2, 2022, February 3, 2022 and February 11, 2022;
(c) All other reports filed pursuant to Section 13(a) or 15(d) of 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; and
(d) The description of the Registrant’s common stock which is contained in the Registration Statement on Form 8-A filed on October 27, 2020 (File No. 001-39668) under Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose of updating such description.
All other reports and documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than information in such filings that was “furnished” under applicable Commission rules rather than “filed”) on or 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 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 of this Registration Statement from the date of the filing of such reports and documents. Any statement contained 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 herein or in any subsequently filed document that 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.
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ITEM 8. | EXHIBITS |
* Previously filed.
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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 Palo Alto, State of California, on this 14th day of March, 2022.
ARCHER AVIATION INC. | ||
By: | /s/ Brett Adcock | |
Brett Adcock | ||
Co-Chief Executive Officer and Co-Chairman | ||
By: | /s/ Adam Goldstein | |
Adam Goldstein | ||
Co-Chief Executive Officer and Co-Chairman |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brett Adcock, Adam Goldstein and Mark Mesler, and each one of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in their 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, 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 he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, 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, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature |
Title |
Date |
/s/ Brett Adcock |
Co-Chief Executive Officer and Co-Chairman | March 14, 2022 |
Brett Adcock | (Co-Principal Executive Officer) | |
/s/ Adam Goldstein |
Co-Chief Executive Officer and Co-Chairman | March 14, 2022 |
Adam Goldstein | (Co-Principal Executive Officer) | |
/s/ Mark Mesler |
Chief Financial Officer | March 14, 2022 |
Mark Mesler | (Principal Financial and Accounting Officer) | |
/s/ Deborah Diaz |
Director | March 14, 2022 |
Deborah Diaz | ||
/s/ Fred Diaz |
Director | March 14, 2022 |
Fred Diaz | ||
/s/ Oscar Munoz |
Director | March 14, 2022 |
Oscar Munoz | ||
/s/ Maria Pinelli |
Director | March 14, 2022 |
Maria Pinelli | ||
/s/ Barbara Pilarski |
Director | March 14, 2022 |
Barbara Pilarski |
| |
/s/ Michael Spellacy |
Director | March 14, 2022 |
Michael Spellacy |
|
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EXHIBIT 5.1
March 14, 2022
Archer Aviation Inc.
1880 Embarcadero Road
Palo Alto, California 94303
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8 (the “Registration Statement”) to be filed by Archer Aviation Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”) on or about March 14, 2022, in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of an aggregate of 4,883,686 shares (the “Shares”) of the Company’s Class A common stock, $0.0001 par value per share (the “Class A Common Stock”), subject to issuance by the Company (a) upon the exercise or settlement of awards to be granted under the Company’s 2021 Equity Incentive Plan (the “2021 Plan”) and (b) pursuant to purchase rights to acquire shares of Class A Common Stock to be granted under the Company’s 2021 Employee Stock Purchase Plan (the “Purchase Plan”).
The 2021 Plan and the Purchase Plan are collectively referred to in this letter as the “Plans.” At your request, we are providing this letter to express our opinion on the matters set forth below in this letter (“our opinion”).
In connection with our opinion, we have examined such matters of fact as we have deemed necessary, which included examination of originals or copies of: (a) the Company’s current Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws (collectively, the “Charter Documents”), the Plans, the Registration Statement and the exhibits thereto, (b) certain corporate proceedings of the Company’s Board of Directors (“Board”) and the Company’s stockholders relating to adoption or approval of the Charter Documents, the Plans, the reservation of the Shares for sale and issuance, the filing of the Registration Statement and the registration of the Shares under the Securities Act and documents regarding the Company’s outstanding and reserved capital stock and other securities, and (c) such other documents as we have deemed advisable, and we have examined such questions of law as we have considered necessary.
In our examination of documents for purposes of this opinion, we have assumed, and express no opinion as to, the authenticity and completeness of all documents submitted to us as originals, the genuineness of signatures on documents reviewed by us, the conformity to originals and the completeness of all documents submitted to us as copies, the legal capacity of all parties executing any documents (other than the Company), the lack of any undisclosed termination or modification or waiver of any document, the absence of any extrinsic agreements or documents that might change or affect the interpretation or terms of documents, and the due authorization, execution and delivery of all documents by each party thereto other than the Company. We have also assumed that any certificates or instruments representing the Shares, when issued, will be executed by the Company by officers of the Company duly authorized to do so. In rendering our opinion, we have also relied upon a Certificate of Good Standing dated March 14, 2022 issued by the Delaware Secretary of State with respect to the Company and representations and certifications made to us by the Company, including, without limitation, representations in an Opinion Certificate addressed to us of even date herewith that the Company has available a sufficient number of authorized shares of Class A Common Stock that are not currently outstanding or reserved for issuance under other outstanding securities or plans of the Company, to enable the Company to issue and deliver all of the Shares as of the date of this letter.
We render this opinion only with respect to, and we express no opinion herein concerning the application or effect of the laws of any jurisdiction other than, the existing Delaware General Corporation Law now in effect. We express no opinion with respect to the securities or “blue sky” laws of any state.
Based upon, and subject to, the foregoing, it is our opinion that when the 4,883,686 Shares of Class A Common Stock that may be issued and sold by the Company (a) upon the exercise or settlement of awards to be granted under the 2021 Plan and (b) pursuant to purchase rights to be granted under the Purchase Plan have been issued and sold by the Company against the Company’s receipt of payment therefor (in an amount and type of consideration not less than the par value per Share) in accordance with the terms (including, without limitation, payment and authorization provisions) of the applicable Plan, and have been duly registered on the books of the transfer agent and registrar for the Shares in the name or on behalf of the holders thereof, such Shares will be validly issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us, if any, in the Registration Statement, the prospectuses constituting a part thereof and any amendments thereto. We do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. This opinion is intended solely for use in connection with issuance and sale of the Shares subject to the Registration Statement and is not to be relied upon for any other purpose. In providing this letter, we are opining only as to the specific legal issues expressly set forth above, and no opinion shall be inferred as to any other matter or matters. This opinion is rendered on, and speaks only as of, the date of this letter first written above, and does not address any potential change in facts or law that may occur after the date of this opinion letter. We assume no obligation to advise you of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to our attention, whether or not such occurrence would affect or modify any of the opinions expressed herein.
Very truly yours, | |
/s/ Fenwick & West LLP | |
FENWICK & WEST LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Archer Aviation Inc. of our report dated March 14, 2022 relating to the financial statements, which appears in Archer Aviation Inc.’s Annual Report on Form 10-K for the year ended December 31, 2021.
/s/ PricewaterhouseCoopers LLP
Irvine, California
March 14, 2022
Exhibit 107.1
Calculation Of Filing Fee Tables
Form S-8
(Form Type)
Archer Aviation Inc.
(Exact Name of Registrant as Specified in its Charter)
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 | Class A Common Stock, par value $0.0001 per share | Rule 457(c) and Rule 457(h) | 3,255,791 | (2) | $ | 3.07 | (3) | $ | 9,995,278.37 | 0.0000927 | $ | 926.57 | ||||||||||||
Equity
| Class A Common Stock, par value $0.0001 per share | Rule 457(c) and Rule 457(h) | 1,627,895 | (4) | $ | 2.61 | (5) | $ | 4,248,805.95 | 0.0000927 | $ | 393.87 | ||||||||||||
Total Offering Amounts | $ | 14,244,084.32 | $ | 1,320.44 | ||||||||||||||||||||
Total Fee Offsets(6) | - | |||||||||||||||||||||||
Net Fee Due | $ | 1,320.44 |
(1) | Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Class A common stock, par value $0.0001 per share (the “Class A Common Stock”), that become issuable under the plans set forth herein by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected that results in an increase to the number of outstanding shares of Archer Aviation Inc.’s (the “Registrant”) Class A Common Stock. |
(2) | Represents additional shares of Class A Common Stock to be registered and available for grant under the Registrant’s 2021 Equity Incentive Plan (the “2021 Plan”) resulting from the annual automatic increase in shares available for issuance under the 2021 Plan pursuant to the provision of the 2021 Plan providing for an annual automatic increase in the number of shares reserved for issuance under the 2021 Plan. |
(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 Class A Common Stock as reported on the New York Stock Exchange on March 7, 2022, which date is within five business days prior to the filing of this Registration Statement. |
(4) | Represents additional shares of Class A Common Stock to be registered and available for grant under the Registrant’s 2021 Employee Stock Purchase Plan (the “Purchase Plan”) resulting from the annual automatic increase in shares available for issuance under the Purchase Plan pursuant to the provision of the Purchase Plan providing for an annual automatic increase in the number of shares reserved for issuance under the Purchase Plan. |
(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 the average of the high and low prices of the Registrant’s Class A Common Stock as reported on the New York Stock Exchange on March 7, 2022, which date is within five business days prior to the filing of this Registration Statement, multiplied by 85%, which is the percentage of the price per share applicable to purchases under the Purchase Plan. |
(6) | The Registrant does not have any fee offsets. |