As filed with the U.S. Securities and Exchange
Commission on July 1, 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.) |
190
West Tasman Drive
San Jose, CA 95134
(Address of principal executive offices, including zip code)
Amended and Restated
2021 Equity Incentive Plan
(Full title of the plan)
Adam Goldstein
Chief Executive Officer
Archer Aviation Inc.
190 West Tasman Drive
San Jose, CA 95134
(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 |
| Joshua
W. Damm |
Archer
Aviation Inc. |
| Fenwick &
West LLP |
190
West Tasman Drive |
| 801
California Street |
San
Jose, CA 95134 |
| Mountain
View, CA 94041 |
(650)
272-3233 |
| (650)
988-8500 |
|
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 23,466,329 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 Amended and
Restated 2021 Equity Incentive Plan (the “Amended and Restated 2021 Plan”). The Amended and Restated 2021 Plan
was approved by the Company’s stockholders at the Registrant’s Annual Meeting of Stockholders on June 10, 2022.
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 Amended and Restated 2021 Plan, this Registration Statement hereby incorporates by reference the contents of the Registrant’s
previous Registration Statements on Form S-8 filed with the Commission on December 8, 2021 (Registration No. 333-261547)
and March 14, 2022 (Registration No. 333-263544), 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 Quarterly Reports on Form 10-Q filed with the Commission on May 12, 2022;
(c) The
Registrant’s Current Reports on Form 8-K filed with the Commission on April 18, 2022, April 29, 2022, May 10, 2022, and June 15, 2022;
(d) 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
(e) 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.
* Previously filed.
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 1st day of July, 2022.
| |
ARCHER
AVIATION INC. |
| |
|
| |
By:
|
/s/
Adam Goldstein |
| |
|
Adam Goldstein |
| |
|
Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each
person whose signature appears below constitutes and appoints 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.
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Signature |
|
Title |
|
Date |
| |
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/s/ Adam Goldstein |
|
Chief Executive Officer and Director |
|
July 1, 2022 |
| Adam Goldstein |
|
(Principal Executive Officer) |
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| |
|
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|
|
|
/s/ Mark Mesler |
|
Chief Financial Officer |
|
July 1, 2022 |
| Mark Mesler |
|
(Principal Financial and Accounting Officer) |
|
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| |
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|
|
|
|
/s/
Deborah Diaz |
|
Director |
|
July 1, 2022 |
| Deborah Diaz |
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|
/s/
Fred Diaz |
|
Director |
|
July 1, 2022 |
| Fred Diaz |
|
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|
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/s/ Oscar
Munoz |
|
Director |
|
July 1, 2022 |
| Oscar Munoz |
|
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|
/s/ Barbara Pilarski |
|
Director |
|
July 1, 2022 |
| Barbara Pilarski |
|
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/s/ Maria Pinelli |
|
Director |
|
July 1, 2022 |
| Maria Pinelli |
|
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/s/ Michael Spellacy |
|
Director |
|
July 1, 2022 |
| Michael Spellacy |
|
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EXHIBIT 5.1
July 1, 2022
Archer Aviation Inc.
190 West Tasman Drive
San Jose, California 95134
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 July 1, 2022, in connection with the registration under the Securities Act of 1933, as amended (the “Securities
Act”), of an aggregate of 23,466,329 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
upon the exercise or settlement of awards to be granted under the Company’s Amended and Restated 2021 Equity Incentive Plan (the
“2021 Plan”). 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 2021 Plan, 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 2021 Plan, 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 July 1, 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 23,466,329 shares of Class A Common Stock that may be issued and sold by the Company
upon the exercise or settlement of awards to be granted under the 2021 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 2021 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 |