As filed with the Securities and Exchange Commission on February 24, 2025
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Gentherm Incorporated
(Exact name of registrant as specified in its charter)
| Michigan | 95-4318554 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) | |
| 28875 Cabot Drive Novi, MI |
48377 | |
| (Address of principal executive offices) | (Zip code) | |
Non-Plan Inducement Awards
(Full title of the plan)
William Presley
President and Chief Executive Officer
Gentherm Incorporated
28875 Cabot Drive
Novi, MI 48377
(248) 504-0500
(Name and address and telephone number, including area code, of agent for service)
Copies to:
| Wayne Kauffman, Esq. Senior Vice President, General Counsel and Secretary Gentherm Incorporated 28875 Cabot Drive Novi, MI 48377 (248) 504-0500 |
Michael S. Ben, Esq. Honigman LLP 2290 First National Building 660 Woodward Ave. Detroit, Michigan 48226-3506 (313) 465-7000 |
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 is being filed to register a total of 175,533 shares (the “Shares”) of common stock, no par value per share (“Common Stock”), of Gentherm Incorporated, a Michigan corporation (the “Registrant”), which may be issued pursuant to the following inducement awards granted by the Registrant on February 24, 2025: (i) 123,135 restricted stock units (“RSUs”) to William Presley and (ii) 52,398 RSUs to Jonathan Douyard (together with William Presley, the “Grantees”), each as an inducement material to accept employment with the Registrant (together, the “Inducement Awards”). The Shares may be issued upon the vesting of time-based RSUs that will vest in accordance with the terms of the Sign-On Inducement Restricted Stock Unit Award Agreement between the Registrant and each of the Grantees.
The Inducement Awards were approved by the Compensation and Talent Committee of the Registrant’s Board of Directors (the “Board”) as an inducement material to the Grantees’ acceptance of employment with the Registrant in compliance with and in reliance on Rule 5635(c)(4) of the Nasdaq Marketplace Rules. The Inducement Awards were granted outside of the Gentherm Incorporated 2023 Equity Incentive Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Part I of Form S-8 is omitted from this Registration Statement in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”) and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to the Grantees that are issued the Inducement Awards covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act, and such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the U.S. Securities and Exchange Commission (the “Commission”) by the Registrant also are hereby incorporated herein by reference:
| (a) | the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2024, filed with the Commission on February 19, 2025 (including information specifically incorporated by reference therein from the Registrant’s Proxy Statement); |
| (b) | the Registrant’s Current Report on Form 8-K filed with the Commission on February 24, 2025; and |
| (c) | the description of the Registrant’s Common Stock under the caption “Description of Securities” on pages 37 through 38 of the Prospectus included in the Registrant’s registration statement on Form SB-2 (File No. 33-61702-LA) effective June 10, 1993, as filed with the Commission pursuant to the Securities Act and incorporated by reference into the Registrant’s initial registration statement on Form 8-A filed with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as amended by the description of the Common Stock contained in Exhibit 4 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2019, and as further amended by any subsequent amendment or report filed for the purpose of updating such description. |
In addition, all documents the Registrant subsequently files pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the filing 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 which deregisters all securities covered hereby then remaining unsold, shall be deemed to be incorporated herein by reference and are a part hereof from the date of filing of such documents.
1
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, which also is or is deemed to be incorporated by reference herein, modifies or supersedes such prior statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The Second Amended and Restated Articles of Incorporation (the “Articles”) authorize the Registrant to indemnify officers, employees or agents of the Registrant to the fullest extent permitted by the Michigan Business Corporation Act (the “MBCA”) or any other applicable laws. The Registrant’s Amended and Restated Bylaws (the “Bylaws”) require the Registrant, to the maximum extent permitted by the MBCA, to indemnify each of its officers and directors against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any threatened, pending or completed action, suit or proceeding arising by reason of the fact that any such person is or was an agent of the Registrant, provided that generally such indemnification rights for proceedings initiated by any such person will only be available if such proceedings were authorized by the Board. The Bylaws authorize the Registrant to provide such other indemnification to directors, officers, employees and agents as permitted by law and authorized by the Board. For purposes of the Bylaws, an “agent” of the Registrant includes any person who is or was a director or officer of the Registrant; or a director or officer of the Registrant that is or was serving at the request of the Registrant as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise; or was a director, officer, employee or agent of a predecessor corporation of the Registrant or of another enterprise at the request of such predecessor corporation.
The Articles provide that, to the full extent permitted by the MBCA, or any other applicable laws presently or hereafter in effect, no director of the Registrant will be personally liable to the Registrant or its shareholders for or with respect to any acts or omissions in the performance of his or her duties as a director of the Registrant.
Under Sections 561-571 of the MBCA, directors and officers of a Michigan corporation may be entitled to indemnification by the corporation against judgments, expenses, fines and amounts paid by the director or officer in settlement of claims brought against them by third persons or by or in the right of the corporation if the statutory standard (defined below) is met. In particular, Section 561 of the MBCA provides that a Michigan corporation has the power to indemnify a person who was or is a party or is threatened to be made a party to a threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal, other than an action by or in the right of the corporation, by reason of the fact that he or she is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, or other enterprise, whether for profit or not, against expenses, including attorneys’ fees, judgments, penalties, fines, and amounts paid in settlement actually and reasonably incurred by him or her in connection with the action, suit, or proceeding (provided that generally the director did not (i) receive a financial benefit to which he was not entitled, (ii) intentionally inflict harm on the corporation or its shareholders, (iii) violate Section 551 of the MBCA relating to loans, dividends and distributions, or (iv) intentionally commit a criminal act, collectively, the “statutory standard”), and with respect to a criminal action or proceeding, if the person had no reasonable cause to believe his or her conduct was unlawful. In addition, Section 562 of the MBCA provides that a Michigan corporation has the power to indemnify a person who was or is a party or is threatened to be made a party to a threatened, pending, or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he or she is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, or other enterprise, whether for profit or not,
2
against expenses, including attorneys’ fees, and amounts paid in settlement actually and reasonably incurred by the person in connection with the action or suit if the statutory standard is met. The MBCA does not permit indemnification for a claim, issue or matter in which the person has been found liable to the corporation unless application for indemnification is made to, and ordered by, the court conducting the proceeding or another court of competent jurisdiction.
Section 563 of the MBCA provides that a director or officer who has been successful on the merits or otherwise in defense of an action, suit or proceeding referred to in Sections 561 and 562 of the MBCA, or in defense of a claim, issue, or matter in any such action, suit, or proceeding, shall be indemnified by the corporation against actual and reasonable expenses, including attorneys’ fees, incurred by him or her in connection with the action, suit or proceeding, and any action, suit, or proceeding brought to enforce this mandatory indemnification.
The foregoing statements are subject to the detailed provisions of the MBCA, the Articles and the Bylaws.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
| * | Filed herewith |
| ** | Indicates management contract or compensatory plan or arrangement |
Item 9. Undertakings.
| (a) | The Registrant hereby undertakes: |
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: |
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
3
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee Tables” table in the effective Registration Statement; |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; |
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement; and
| (2) | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| (b) | The Registrant hereby undertakes that, for the purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (c) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
4
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 Novi, State of Michigan, on February 24, 2025.
| GENTHERM INCORPORATED | ||
| By: | /s/ WILLIAM PRESLEY | |
| William Presley | ||
| President and Chief Executive Officer | ||
5
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints William Presley, Jonathan Douyard and Wayne Kauffman as his or her true and lawful attorneys-in-fact and agents with full power of substitution, severally, for him or her in any and all capacities, to sign the Registration Statement on Form S-8 of Gentherm Incorporated, and any or all amendments (including post-effective amendments thereto), which relates to the registration and issuance of the Common Stock pursuant to the Inducement Awards, 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 in connection therewith, as fully for all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his, her or their 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 on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.
| SIGNATURE | TITLE | DATE | ||
| /s/ WILLIAM PRESLEY |
Director, President and Chief Executive Officer (Principal Executive Officer) |
February 24, 2025 | ||
| William Presley | ||||
| /s/ JONATHAN DOUYARD Jonathan Douyard |
Executive Vice President, Chief Financial Officer and Treasurer (Principal Financial Officer) |
February 24, 2025 | ||
| /s/ NICHOLAS BREISACHER |
Chief Accounting Officer (Principal Accounting Officer) |
February 24, 2025 | ||
| Nicholas Breisacher | ||||
| /s/ RONALD HUNDZINSKI |
Director, Chair of the Board | February 24, 2025 | ||
| Ronald Hundzinski | ||||
| /s/ SOPHIE DESORMIÈRE |
Director | February 24, 2025 | ||
| Sophie Desormière | ||||
| /s/ DAVID HEINZMANN |
Director | February 24, 2025 | ||
| David Heinzmann | ||||
| /s/ LAURA KOWALCHIK |
Director | February 24, 2025 | ||
| Laura Kowalchik | ||||
| /s/ CHARLES KUMMETH |
Director | February 24, 2025 | ||
| Charles Kummeth | ||||
| /s/ BETSY METER |
Director | February 24, 2025 | ||
| Betsy Meter | ||||
| /s/ JOHN STACEY |
Director | February 24, 2025 | ||
| John Stacey | ||||
| /s/ KENNETH WASHINGTON |
Director | February 24, 2025 | ||
| Kenneth Washington | ||||
6