As filed with the Securities and Exchange Commission on October 3, 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

Xos, Inc.
(Exact name of registrant as specified in its charter)

Delaware98-1550505
(State or other jurisdiction of
incorporation or organization)
(IRS Employer
Identification No.)
3550 Tyburn Street, Unit 100
Los Angeles, California
90065
(Address of Principal Executive Offices)(Zip Code)

Xos, Inc. 2021 Equity Incentive Plan
Xos, Inc. 2021 Employee Stock Purchase Plan
(Full title of the plan)

Christen Romero
General Counsel
Xos, Inc.
3550 Tyburn Street
Los Angeles, California 90065

Tel: (818) 316-1890
(Telephone number, including area code, of agent for service)

Copies to:
Dave Peinsipp
Rachel Proffitt
Cooley LLP
3 Embarcadero Center, 20th Floor
San Francisco, California 94111

Tel: (415) 693-2000

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

Xos, Inc. (the “registrant”) is filing this Registration Statement on Form S-8 with the Securities and Exchange Commission (the “Commission”) to register (i) 8,156,854 additional shares of registrant’s common stock, par value $0.0001 per share (the “Common Stock”), reserved for issuance under the Xos, Inc. 2021 Equity Incentive Plan (the “2021 Plan”); and (ii) 2,447,056 additional shares of Common Stock reserved for issuance under the Xos, Inc. 2021 Employee Stock Purchase Plan (the “2021 ESPP” and together with the 2021 Plan, the “Plans”), in each case as a result of the annual evergreen increase under each Plan. In accordance with General Instruction E of Form S-8, and only with respect to the Common Stock being registered under the Plans, this Registration Statement hereby incorporates by reference the contents of the Registration Statement on Form S-8 (File No. 333-260502), filed by the registrant with the Commission on October 26, 2021.


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 are hereby incorporated by reference in this registration statement.

(a)
the registrant’s annual report on Form 10-K for the fiscal year ended December 31, 2021 filed with the Commission on March 30, 2022;
(b)
the registrant’s quarterly reports on Form 10-Q for the quarters ended March 31, 2022 and June 30, 2022, filed with the Commission on May 9, 2022 and August 11, 2022, respectively;
(c)
the registrant’s current reports on Form 8-K filed with the Commission on March 28, 2022 (solely with respect to Items 1.01, 3.02, and 9.01 included therein), May 26, 2022, July 15, 2022, August 11, 2022, and September 30, 2022; and
(d)
the description of the registrant’s securities contained in the registration statement on Form 8-A filed with the Commission on October 6, 2020 and any amendment or report filed with the Commission for the purpose of updating the description.
All reports and other documents filed by the registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, other than current reports furnished under Item 2.02 and Item 7.01 of Form 8-K and any exhibits furnished on such form that relate to such items, after the date of this registration statement, and prior to the filing of a post-effective amendment that indicates that all securities offered hereby have been sold or that 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 filing of such reports and documents. Any statement contained 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 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 such statement so modified or superseded shall not constitute a part of this registration statement, except as so modified or superseded.















Item 8. Exhibits.

Exhibit No.Description
4.1
4.2
5.1*
23.1*
23.3*
24.1*
107*
99.1
99.2
99.3
99.4
*    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 Los Angeles, State of California on October 3, 2022.
XOS, INC.
/s/ Dakota Semler
Name:Dakota Semler
Title:Chief Executive Officer




POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Dakota Semler and Kingsley Afemikhe, and each of them, his or her true and lawful attorneys-in-fact and agents, each 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 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, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or his 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 below by the following persons in the capacities and on the date indicated.

SignatureTitleDate

/s/ Dakota Semler

Chief Executive Officer, Chairman

October 3, 2022
Dakota Semler
(Principal Executive Officer)
/s/ Kingsley AfemikheChief Financial OfficerOctober 3, 2022
Kingsley Afemikhe
(Principal Financial Officer and Principal Accounting Officer)
/s/ Giordano SordoniChief Operating Officer, DirectorOctober 3, 2022
Giordano Sordoni

/s/ Anousheh Ansari

Director

October 3, 2022
Anousheh Ansari

/s/ Alice Jackson

Director

October 3, 2022
Alice Jackson
/s/ Burt JordanDirectorOctober 3, 2022
Burt Jordan
/s/ S. Sara MathewDirectorOctober 3, 2022
S. Sara Mathew
/s/ George N. MattsonDirectorOctober 3, 2022
George N. Mattson
/s/ Ed RappDirectorOctober 3, 2022
Ed Rapp


Exhibit 107
Calculation of Filing Fee Table
Form S-8
(Form Type)

Xos, 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
Common Stock, par value $0.0001 per share
Other
8,156,854
(2)
$ 1.26
(4)
$10,277,636.04 
0.0001102
$
1,132.60
Equity
Common Stock, par value $0.0001 per share
Other
2,447,056
(3)
$ 1.08
(5)
$2,642,820.48 
0.0001102
$
291.24
Total Offering Amounts
10,603,910$12,920,456.52 
$
1,423.84
Total Fee Offsets
N/A
Net Fee Due
$
1,423.84

(1)
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers an indeterminate number of additional shares that may be issued to adjust the number of shares issued pursuant to the plans described herein in the event of a stock dividend, stock split, reverse stock split, extraordinary dividend, extraordinary distribution, recapitalization, reorganization, merger, combination, consolidation, split-up, spin-off, combination, exchange of shares, rights offering, separation, reorganization, liquidation or similar event.
(2)
Represents 8,156,854 shares of the registrant’s Common Stock that were added to the shares available for issuance under the Xos, Inc. 2021 Equity Incentive Plan (the “2021 Plan”). Such shares consist of additional shares of Common Stock reserved pursuant to the “evergreen” provision under the 2021 Plan.
 
(3)
Represents 2,447,056 shares of the registrant’s Common Stock that were added to the shares available for issuance under the Xos, Inc. 2021 Employee Stock Purchase Plan (the “2021 ESPP” and together with the 2021 Plan, the “Plans”). Such shares consist of additional shares of Common Stock reserved pursuant to the “evergreen” provision under the 2021 ESPP.
(4)
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 Common Stock as reported on the Nasdaq Capital Market on September 30, 2022, which date is within five business days prior to the filing of this registration statement.
(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 $1.08, which is 85% of the average of the high and low prices of the registrant’s Common Stock as reported on the Nasdaq Capital Market on September 30, 2022, which date is within five business days prior to the filing of this registration statement.







Exhibit 5.1




image_0.jpg
Rachel B. Proffitt
+1 415 693 2031
rproffitt@cooley.com
October 3, 2022
Xos, Inc.
3550 Tyburn Street, Unit 100
Los Angeles, CA 90065

Ladies and Gentlemen:
We have acted as counsel to Xos, Inc., a Delaware corporation (the “Company”), in connection with the filing of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission covering the offering of up to 10,603,910 shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (“Common Stock”), consisting of (a) 8,156,854 shares of Common Stock issuable pursuant to the Company’s 2021 Equity Incentive Plan (the “2021 EIP”) and (b) 2,447,056 shares of Common Stock issuable pursuant to the Company’s 2021 Employee Stock Purchase Plan (together with the 2021 EIP, the “Plans”).
In connection with this opinion, we have examined and relied upon (a) the Registration Statement and related prospectuses, (b) the Company’s Certificate of Incorporation and Bylaws, each as currently in effect, (c) the Plans, and (d) originals or copies certified to our satisfaction of such records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below.
We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the accuracy, completeness and authenticity of certificates of public officials and the due authorization, execution and delivery of all documents by all persons other than the Company where authorization, execution and delivery are prerequisites to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified such matters.
We note that the Company was initially incorporated under the laws of the Cayman Islands and was domesticated (the “Domestication”) as a corporation in the State of Delaware in accordance with Section 388 of the General Corporation Law of the State of Delaware (the “DGCL”). We have assumed all matters determinable under the laws of the Cayman Islands, including without limitation that (i) immediately prior to the Domestication, the Company was duly organized, validly existing and in good standing under the laws of the Cayman Islands, (ii) the Company had full power, authority and legal right to domesticate in the State of Delaware pursuant to Section 388 and to authorize the issuance of its shares prior to the Domestication, (iii) the laws of the Cayman Islands permitted the Company to domesticate in the State of Delaware pursuant to Section 388, (iv) the discontinuation of the Company from the Cayman Islands was duly authorized by all necessary corporate action as provided in its governing documents and was duly effected in accordance with Cayman Islands law, (v) any and all consents, approvals and authorizations from applicable Cayman Island governmental authorities required to authorize and permit the Company to domesticate in the State of Delaware pursuant to Section 388 were obtained, (vi) the approval of the Plans by the board and shareholders of the Company as a Cayman Islands exempted company prior to the Domestication were done in accordance with the applicable governing documents of the Company and the laws of the Cayman Islands.
Our opinion is expressed only with respect to the DGCL. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.
Cooley LLP 3 Embarcadero Center 20th Floor San Francisco, CA 94111-4004
t: (415) 693-2000 f: (415) 693-2222 cooley.com

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October 3, 2022
Page 2

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plans, the Registration Statement and related prospectuses, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration Statement.
*****

Cooley LLP 3 Embarcadero Center 20th Floor San Francisco, CA 94111-4004
t: (415) 693-2000 f: (415) 693-2222 cooley.com

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Sincerely,
Cooley LLP
By: /s/ Rachel B. Profitt         
    Rachel B. Proffitt
Cooley LLP 3 Embarcadero Center 20th Floor San Francisco, CA 94111-4004
t: (415) 693-2000 f: (415) 693-2222 cooley.com

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 our report dated March 30, 2022, relating to the consolidated financial statements of XOS, Inc. and Subsidiaries, appearing in the entity’s Annual Report on Form 10-K for the year ended December 31, 2021.


/s/ WithumSmith+Brown, PC

Irvine, California
October 3, 2022