HYLN Hyliion Holdings Corp

As filed with the Securities and Exchange Commission on August 6, 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

 

Hyliion Holdings Corp.

(Exact name of registrant as specified in its charter)

 

Delaware		83-2538002
(State or other jurisdiction of incorporation or organization)		(IRS Employer Identification No.)
1202 BMC Drive, Suite 100 Cedar Park, Texas		78613
(Address of Principal Executive Offices)		(Zip Code)

 

Hyliion Holdings Corp. 2024 Equity Incentive Plan
(Full title of the plan)

  

Thomas Healy
Chief Executive Officer
Hyliion Holdings Corp.
1202 BMC Drive, Suite 100
Cedar Park, Texas 78613
(Name and address of agent for service)

 

(833) 495-4466
(Telephone number, including area code, of agent for service)

 

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) or the Securities Act. ☐

 

 

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The information required by Part I of Form S-8 to be contained in the Section 10(a) prospectus is omitted from this registration statement in accordance with Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”). The document(s) containing the information specified in Part I will be sent or given to participants in the Hyliion Holdings Corp. 2024 Equity Incentive Plan (the “Plan”) as specified by Rule 428(b)(1) of the Securities Act. Such documents are not being filed with the Securities and Exchange Commission (the “Commission”) as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These document(s) and the documents incorporated by reference in the registration statement pursuant to Item 3 of Part II of this form, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

 

 

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, 2023 filed with the Commission on February 13, 2024;

 

(b)

the registrant’s quarterly reports on Form 10-Q for the quarter ended March 31, 2024, filed with the Commission on May 1, 2024 and June 30, 2024, filed with the Commission on August 6, 2024;

 

(c)

the registrant’s current reports on Form 8-K filed with the Commission on May 23, 2024, May 1, 2024, April 4, 2024, March 4, 2024, February 13, 2024, and February 13, 2024 (except for any Items furnished under Item 2.02 or Item 7.01 and any exhibits that relate to such items); and

 

(d)

the description of the registrant’s common stock contained in Exhibit 4.4 to the registrant’s annual report on Form 10-K/A filed with the Commission on May 17, 2021, 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 4. Description of Securities

 

Not applicable.

 

Item 5. Interests of Named Experts and Counsel

 

Not applicable.

 

 

Item 6. Indemnification of Directors and Officers

 

Section 145 of the General Corporation Law of the State of Delaware, as amended, authorizes the Registrant to indemnify any director or officer under certain prescribed circumstances and subject to certain limitations against certain costs and expenses, including attorney’s fees actually and reasonably incurred in connection with any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, to which a person is a party by reason of being one of the Registrant’s directors or officers if it is determined that such person acted in accordance with the applicable standard of conduct set forth in such statutory provisions.

 

Additionally, our Second Amended and Restated Certificate of Incorporation eliminates our directors’ liability to the fullest extent permitted under the DGCL. The DGCL provides that directors of a corporation will not be personally liable for monetary damages for breach of their fiduciary duties as directors, except for liability:

 

●

for any transaction from which the director derives an improper personal benefit;

 

●

for any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;

 

●

for any unlawful payment of dividends or redemption of shares; or

 

●

for any breach of a director’s duty of loyalty to the corporation or its stockholders.

 

If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of the Company’s directors will be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.

 

These provisions do not affect a director’s responsibilities under any other law, such as the federal securities laws or state or federal environmental laws.

 

In addition, we have entered into separate indemnification agreements with our directors and officers. These agreements, among other things, require us to indemnify our directors and officers for certain expenses, including attorneys’ fees, judgments, fines, and settlement amounts incurred by a director or officer in any action or proceeding arising out of their services as one of our directors or officers or any other company or enterprise to which the person provides services at our request.

 

 

We maintain a directors’ and officers’ insurance policy pursuant to which our directors and officers are insured against liability for actions taken in their capacities as directors and officers.

 

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, or persons controlling 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.

 

Item 7. Exemption from Registration Claimed

 

Not applicable.

 

Item 8. Exhibits.

 

Exhibit No.		Description
4.1		Second Amended and Restated Certificate of Incorporation of the Company dated October 1, 2020 (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed on October 7, 2020).
4.2		Amended and Restated Bylaws of the Company dated October 1, 2020 (incorporated by reference to Exhibit 3.2 to the Current Report on Form 8-K filed on October 7, 2020).
5.1*		Opinion of Vinson & Elkins LLP.
23.1*		Consent of Grant Thornton LLP, independent registered public accounting firm of Hyliion Inc.
23.2*		Consent of Vinson & Elkins LLP (included in Exhibit 5.1).
24.1*		Power of Attorney (contained on the signature page hereto).
99.1		Hyliion Holdings Corp. 2024 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the Quarterly Report on Form 10-Q filed on August 6, 2024).
107.1*		Calculation of filing fee tables.

 

*	Filed herein

 

Item 9. Undertakings.

 

(a)

The undersigned 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;

 

(ii)

to reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment hereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this 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% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;

  

 

(iii)

to include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this 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 periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.

 

(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 undersigned registrant hereby undertakes that, for 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 Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this 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.

 

 

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 Cedar Park, State of Texas, on August 6, 2024.

 

	HYLIION HOLDINGS CORP.
	By:	/s/ Thomas Healy
	Name:	Thomas Healy
	Title:	Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Thomas Healy and Jon Panzer, and each of them, his true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him and in his 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 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.

 

Signature		Title		Date
/s/ Thomas Healy		Chief Executive Officer and Director		August 6, 2024
Thomas Healy		(Principal Executive Officer)
/s/ Jon Panzer		Chief Financial Officer and Chief Accounting Officer		August 6, 2024
Jon Panzer		(Principal Financial Officer and Principal Accounting Officer)
/s/ Rodger L. Boehm		Director		August 6, 2024
Rodger L. Boehm
/s/ Jeffrey A. Craig		Director		August 6, 2024
Jeffrey A. Craig
/s/ Vincent T. Cubbage		Director		August 6, 2024
Vincent T. Cubbage
/s/ Richard J. Freeland		Director		August 6, 2024
Richard J. Freeland
/s/ Mary E. Gustanski		Director		August 6, 2024
Mary E. Gustanski
/s/ Robert M. Knight, Jr.		Director		August 6, 2024
Robert M. Knight, Jr.
/s/ Melanie M. Trent		Director		August 6, 2024
Melanie M. Trent

 

 

6

Exhibit 5.1

 

 

 

August 6, 2024

 

Hyliion Holdings Corp.

1202 BMC Drive, Suite 100

Cedar Park, Texas

  

Ladies and Gentlemen:

 

We have acted as counsel for Hyliion Holdings Corp., a Delaware corporation (the “Company”), in connection with the Company’s registration under the Securities Act of 1933, as amended (the “Act”), of the offer and sale of an aggregate of up to 10,700,000 shares of the Company’s common stock, par value $0.0001 per share (the “Shares”), pursuant to the Company’s registration statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) on August 6, 2024, which Shares may be issued from time to time in accordance with the terms of the Hyliion Holdings Corp. 2024 Equity Incentive Plan (as amended from time to time, the “Plan”).

 

In reaching the opinions set forth herein, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of such documents and records of the Company and such statutes, regulations and other instruments as we deemed necessary or advisable for purposes of this opinion, including (i) the Registration Statement, (ii) certain resolutions adopted by the board of directors of the Company, (iii) the Plan, and (iv) such other certificates, instruments, and documents as we have considered necessary for purposes of this opinion letter. As to any facts material to our opinions, we have made no independent investigation or verification of such facts and have relied, to the extent that we deem such reliance proper, upon certificates of public officials and officers or other representatives of the Company.

 

We have assumed (i) the legal capacity of all natural persons, (ii) the genuineness of all signatures, (iii) the authority of all persons signing all documents submitted to us on behalf of the parties to such documents, (iv) the authenticity of all documents submitted to us as originals, (v) the conformity to authentic original documents of all documents submitted to us as copies, (vi) that all information contained in all documents reviewed by us is true, correct and complete, and (vii) that the Shares will be issued in accordance with the terms of the Plan.

 

Based on the foregoing and subject to the limitations set forth herein, and having due regard for the legal considerations we deem relevant, we are of the opinion that the Shares have been duly authorized and, when the Shares are issued by the Company in accordance with the terms of the Plan and the instruments executed pursuant to the Plan, as applicable, that govern the awards to which any Share relates, the Shares will be validly issued, fully paid and non-assessable.

 

This opinion is limited in all respects to the General Corporation Law of the State of Delaware. We express no opinion as to any other law or any matter other than as expressly set forth above, and no opinion as to any other law or matter may be inferred or implied herefrom. The opinions expressed herein are rendered as of the date hereof and we expressly disclaim any obligation to update this letter or advise you of any change in any matter after the date hereof.

 

This opinion letter may be filed as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Act.

 

Very truly yours,
	/s/ Vinson & Elkins L.L.P.
	Vinson & Elkins L.L.P.

 

Vinson & Elkins LLP Attorneys at Law Austin Beijing Dallas Dubai Hong Kong Houston London Moscow New York Palo Alto Richmond Riyadh San Francisco Taipei Tokyo Washington

Trammell Crow Center, 2001 Ross Avenue, Suite 3700 Dallas, TX 75201-2975 Tel +1.214.220.7700 Fax +1.214.220.7716 www.velaw.com

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We have issued our report dated February 13, 2024 with respect to the consolidated financial statements of Hyliion Holdings Corp. included in the Annual Report on Form 10-K for the year ended December 31, 2023, which are incorporated by reference in this Registration Statement. We consent to the incorporation by reference of the aforementioned report in this Registration Statement.

 

/s/ GRANT THORNTON LLP 

 

Dallas, Texas
August 6, 2024

 

Exhibit 107.1

 

Calculation of Filing Fee Tables

 

Form S-8

Registration Statement

(Form Type)

 

Hyliion Holdings Corp.
(Exact Name of Registrant as Specified in its Charter)

 

Table 1 – Newly Registered Securities

 

		Security Type		Security Class Title		Fee Calculation Rule		Amount Registered (1)				Proposed Maximum Offering Price Per Unit (2)				Maximum Aggregate Offering Price (2)				Fee Rate			Amount of Registration Fee (2)
		Equity		Common Stock, par value, $0.0001 per share		Rule 457(c) and 457(h)			10,700,000			$	1.85			$	19,795,000				$147.60 per $1,000,000		$	2,921.75
Total Offering Amounts													—			$	19,795,000				—		$	2,921.75
Total Fee Offsets													—				—				—			—
Net Fee Due													—				—				—		$	2,921.75

 

 

(1)

The Form S-8 registration statement to which this Exhibit 107.1 is attached registers 10,700,000 shares of common stock, $0.0001 par value per share (the “Common Stock”), of Hyliion Holdings Corp., a Delaware corporation, pursuant to the Hyliion Holdings Corp. 2024 Equity Incentive Plan (the “Plan”). Pursuant to Rule 416, this Registration Statement shall be deemed to cover such additional shares of Common Stock as may become issuable pursuant to the antidilution provisions of the Plan.

(2)

Estimated solely for purposes of calculating the registration fee, in accordance with Rule 457(h), on the basis of the price of securities of the same class, as determined in accordance with Rule 457(c), using the average of the high and low prices for a share of Common Stock as reported on The New York Stock Exchange on August 2, 2024, which was equal to $1.85.

 

 

 

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