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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
(Amendment No. 1)
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January
14, 2022
ARCIMOTO, INC.
(Exact name of registrant as specified in its charter)
Oregon
(State or other jurisdiction of incorporation)
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001-38213
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26-1449404
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(Commission
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(IRS Employer
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File Number)
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Identification No.)
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2034 West 2nd Avenue, Eugene, OR 97402
(Address of principal executive offices) (Zip Code)
Registrant’s telephone number, including area
code (541) 683-6293
(Former name or former address, if changed since last
report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of
the Act:
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Title of Each Class
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Trading Symbol(s)
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Name of Each Exchange on Which Registered
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Common stock, no par value
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FUV
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Nasdaq Global Market
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Indicate by check mark whether the registrant is an emerging growth company
as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934
(§240.12b-2 of this chapter).
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 13(a) of the Exchange Act.
EXPLANATORY NOTE
This Amendment No. 1 on Form 8-K/A (this “Form 8-K/A”)
is an amendment to the Current Report on Form 8-K filed by Arcimoto, Inc. with the Securities and Exchange Commission on January 14, 2022
(the “Original 8-K”). This Form 8-K/A is being filed to correct typographical errors in Item 1.01 of the Original 8-K and
in Exhibit 5.1 thereto, each of which reflected the incorrect aggregate size of the Offering (as defined below) pursuant to the Sales
Agreement (as defined below). No other changes have been made to the Original 8-K or the exhibits thereto.
Item 1.01 Entry into a Material Definitive Agreement.
On January 14, 2022, Arcimoto, Inc. (the “Company”) entered
into an Equity Distribution Agreement (the “Sales Agreement”) with Canaccord Genuity LLC (the “Agent”), pursuant
to which the Company may offer and sell, from time to time, through or to the Agent, as sales agent (the “Offering”), up to
$100.0 million of shares (the “Shares”) of its common stock. Any Shares offered and sold in the Offering will be issued pursuant
to the Company’s Registration Statement on Form S-3 (File No. 333-261955) filed with the Securities and Exchange Commission (the
“SEC”) on December 30, 2021 (the “Form S-3”) and declared effective on January 13, 2022, and the 424(b) prospectus
supplement relating to the Offering dated January 14, 2022.
In accordance with the terms of the Sales Agreement, the Company may offer
and sell the Shares at any time and from time to time through or to the Agent, as sales agent. Sales of Shares pursuant to the Sales Agreement,
if any, will be made in sales deemed to be “at the market” equity offerings as defined in Rule 415 promulgated under the Securities
Act of 1933, as amended (the “Securities Act”), including sales made directly on or through The Nasdaq Global Market, the
existing trading market for the Company’s common stock, sales made to or through a market maker other than on an exchange or otherwise,
in negotiated transactions at market prices prevailing at the time of sale or at prices related to such prevailing market prices, and/or
any other method permitted by law, including in privately negotiated transactions.
The Company has no obligation to sell any of the Shares, and may at any
time suspend offers under the Sales Agreement. The Offering will terminate upon the earlier of (a) the sale of all of the Shares, or (b)
the termination by written notice from the Company or by written notice from the Agent to the Company.
Under the terms of the Sales Agreement, the Agent will be entitled to a
commission at a fixed rate of 3.0% of the gross sales price of Shares sold through the Agent under the Sales Agreement. The Company will
also reimburse the Agent for certain expenses incurred in connection with the Sales Agreement, and agreed to provide indemnification and
contribution to the Agent with respect to certain liabilities, including liabilities under the Securities Act and the Securities Exchange
Act of 1934, as amended.
The Company intends to use any net proceeds from the Offering for general
corporate purposes, including to cover our operating expenses and inventory.
The foregoing description of the Sales Agreement does not purport to be
complete and is qualified in its entirety by reference to the full text of the Sales Agreement, a copy of which is filed as Exhibit 10.1
to this Current Report on Form 8-K. A copy of the opinion of Nelson Mullins Riley & Scarborough LLP, counsel to the Company, relating
to the validity of the Shares to be issued in the Offering is filed with this Current Report on Form 8-K as Exhibit 5.1.
This Current Report on Form 8-K shall not constitute an offer to sell or
the solicitation of an offer to buy the Shares, nor shall there be any offer, solicitation or sale of the Shares in any state or country
in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such
state or country.
Item 9.01. Exhibits.
* Previously filed.
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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ARCIMOTO, INC.
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Date: January 20, 2022
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By:
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/s/ Mark Frohnmayer
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Mark Frohnmayer
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Chief Executive Officer
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Exhibit 5.1
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NELSON MULLINS RILEY
& SCARBOROUGH LLP
ATTORNEYS AND
COUNSELORS AT LAW
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4140 Park Lake Ave |
2nd Floor
Raleigh, NC 27612
nelsonmullins.com
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January 14, 2022
Arcimoto, Inc.
2034 West 2nd Avenue
Eugene, Oregon 97402
Ladies and Gentlemen:
We have acted as counsel to Arcimoto,
Inc. (the “Company”), an Oregon corporation, in connection with the preparation and filing with the Securities and Exchange
Commission (the “Commission”) pursuant to Rule 424(b) of the rules and regulations of the Securities Act of 1933, as amended
(the “Act”), of a prospectus supplement, dated January 14, 2022 (the “Prospectus Supplement”), to the Company’s
Registration Statement on Form S-3 (File No. 333-261955) filed with the Commission under the Act on December 30, 2021 (the “Registration
Statement”), and the related prospectus, dated January 13, 2022, included in the Registration Statement at the time it originally
became effective (the “Base Prospectus” and, together with the Prospectus Supplement, the “Prospectus”), relating
to the proposed issuance and sale by the Company, from time to time through Canaccord Genuity LLC (“Canaccord”), as the sales
agent, of shares (the “Shares”) of common stock, no par value per share, of the Company in an aggregate offering amount of
up to $100,000,000. The Shares are to be issued and sold pursuant to that certain Equity Distribution Agreement, dated January 14, 2022,
by and between the Company and Canaccord (the “Sales Agreement”).
For the purpose of rendering this
opinion, we assumed, without investigation, the genuineness of all signatures, the correctness of all certificates, the authenticity of
all documents submitted to us as originals, the conformity to original documents of all documents submitted as certified or photostatic
copies, and the authenticity of the originals of such copies, and the accuracy and completeness of all records made available to us by
the Company. In addition, in rendering this opinion, we assumed that the Shares will be offered in the manner and on the terms identified
or referred to in the Registration Statement, the Base Prospectus and the Prospectus Supplement, including all supplements and amendments
thereto.
Our opinion is limited solely
to matters set forth herein. The law covered by the opinions expressed herein is limited to the federal law of the United States and internal
laws of the State of Oregon and the State of New York.
On the basis of the foregoing,
and in reliance thereon, we are of the opinion that the Shares, when issued and sold against payment therefor in accordance with the Sales
Agreement, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing
of this opinion as an exhibit to the Registration Statement, and we further consent to the use of our name under the caption “Legal
Matters” in the Registration Statement, the Base Prospectus and the Prospectus Supplement. By giving these consents,
we do not thereby admit that we are within the category of persons where consent is required under Section 7 of the Securities Act or
the rules and regulations of the Commission.
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Very truly yours,
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/s/ Nelson Mullins Riley & Scarborough
LLP
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Nelson Mullins Riley & Scarborough
LLP
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