SEC Form S-8 filed by Xos Inc.

As filed with the Securities and Exchange Commission on July 26, 2024

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)

Xos, Inc. Amended and Restated 2021 Equity Incentive 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:

David G. Peinsipp

Logan Tiari

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:

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

On April 25, 2024, the Board of Directors of Xos, Inc. (the “registrant”) adopted, subject to approval of the registrant’s stockholders, and on June 24, 2024, the registrant’s stockholders approved, the Xos, Inc. Amended and Restated 2021 Equity Incentive Plan (the “2021 Plan”) to increase the aggregate number of shares of the registrant’s common stock, par value $0.0001 per share (the “Common Stock”), reserved for issuance under the 2021 Plan by 1,180,819 shares. The registrant is filing this Registration Statement on Form S-8 with the Securities and Exchange Commission (the “Commission”) to register the offering of 1,405,828 additional shares of Common Stock reserved for issuance under the 2021 Plan, which consists of (A) 1,180,819 additional shares of Common Stock pursuant to the 2021 Plan, (B) 32,248 additional shares of Common Stock underlying restricted stock units that were previously granted under the 2021 Plan and forfeited because of the failure to vest as of July 19, 2024, and (C) 192,761 shares of Common Stock underlying restricted stock units that were previously granted under the 2021 Plan and withheld by the registrant to satisfy tax withholding obligations as of July 19, 2024. In accordance with General Instruction E of Form S-8, and only with respect to the Common Stock being registered under the 2021 Plan, this Registration Statement hereby incorporates by reference the contents of the Registration Statements on Form S-8 (File Nos. 333-260502, 333-267714, 333-271450 and 333-276781), filed by the registrant with the Commission on October 26, 2021, October 3, 2022, April 26, 2023 and January 31, 2024, respectively.

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.

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.

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 July 26, 2024.

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Dakota Semler, Christen Romero and Liana Pogosyan, 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.