As filed with the Securities and Exchange Commission on August 15, 2022
Registration No. 333-264454
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-8
REGISTRATION STATEMENT NO. 333-264454
THE SECURITIES ACT OF 1933
(Exact name of Registrant as specified in its charter)
(State or other jurisdiction of
incorporation or organization)
1070 Terra Bella Avenue
Mountain View, California 94043
(Address of principal executive offices, including zip code)
2016 EQUITY INCENTIVE PLAN
KNIGHTSCOPE, INC. 2014 EQUITY INCENTIVE PLAN
KNIGHTSCOPE, INC. 2022 EQUITY INCENTIVE PLAN
(Full title of the plans)
William Santana Li
Chief Executive Officer
1070 Terra Bella Avenue
Mountain View, California 94043
(Name, address and telephone number, including area code, of agent for service)
Ned A. Prusse
Perkins Coie LLP
505 Howard Street, Suite 1000
San Francisco, California 94105-3204
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||x||Smaller reporting company||x|
|Emerging growth company||x|
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. ¨
Knightscope, Inc. 2022 Equity Incentive Plan
On June 23, 2022 (the “Effective Date”), the stockholders of Knightscope, Inc. (the “Registrant”) approved the Knightscope, Inc. 2022 Equity Incentive Plan (the “2022 Plan”) at the Registrant’s 2022 Annual Meeting of Stockholders. As of the Effective Date, no additional awards will be granted under the Knightscope, Inc. 2016 Equity Incentive Plan (the “2016 Plan”) or the Knightscope, Inc. 2014 Equity Incentive Plan (the “2014 Plan” and together with the 2016 Plan, the “Prior Plans”).
Prior Registration Statement on Form S-8
On April 22, 2022, the Registrant filed a Registration Statement on Form S-8 (File No. 333-264454) with the Securities and Exchange Commission (the “Commission”) for the purpose of registering (i) 611,000 shares of Class B Common Stock issuable upon the exercise of options outstanding under the 2014 Plan (which shares would be issuable as shares of Class A Common Stock upon conversion of the shares of Class B Common Stock underlying such options) and (ii) 8,306,417 shares of Class A Common Stock issuable under the 2016 Plan, including shares issuable upon the exercise of options outstanding under the 2016 Plan (the “Prior Registration Statement”). As of the Effective Date, no new awards may be granted under the Prior Plans.
Shares Authorized for Issuance under 2022 Equity Incentive Plan
The total number of shares of Class A Common Stock authorized for issuance under the 2022 Plan consists of (i) 5,000,000 new shares (registered concurrently on a new registration statement on Form S-8); (ii) up to 595,669 shares that remained available for issuance as new awards under the 2016 Plan as of the Effective Date; and (iii) up to 8,276,383 shares subject to outstanding options granted under the Prior Plans that were outstanding as of the Effective Date and that, on or after such date, cease to be subject to such options, such as due to cancellation, expiration or termination of such options (the shares described in clauses (ii) and (iii) being the “Prior Plan Shares”). In addition, the number of shares authorized under the 2022 Plan will be increased each January 1st, beginning on January 1, 2023 and ending on (and including) January 1, 2032, by an amount equal to the lesser of (a) 5% of the Registrant’s outstanding Class A Common Stock and Class B Common Stock outstanding on December 31st of the immediately preceding calendar year (rounded up to the nearest whole share) and (b) a number of shares determined by Registrant’s Board of Directors or the Compensation Committee of the Board of Directors.
Pursuant to the undertaking in Item 512(a)(1)(iii) of Regulation S-K that the Registrant disclose a material change in the plan of distribution as originally disclosed in the Prior Registration Statement, and in accordance with Commission Compliance and Disclosure Interpretation No. 126.43, the Registrant is filing this Post-Effective Amendment No. 1 to the Prior Registration Statement (the “Post-Effective Amendment”) to reflect the registration of the issuance of the Prior Plan Shares pursuant to the 2022 Plan to the extent such shares are, or become, issuable under the 2022 Plan, and to file as an exhibit hereto a copy of the 2022 Plan and a new opinion as to the validity of the Prior Plan Shares that may be issued under the 2022 Plan. All other items of the Prior Registration Statement are incorporated herein by reference without change.
INFORMATION REQUIRED IN REGISTRATION STATEMENT
|Item 3.||Incorporation of Documents by Reference.|
The Registrant hereby incorporates by reference into this Registration Statement the following documents filed with the Commission:
(a) the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed on March 31, 2022, which contains the audited financial statements of the Registrant for the latest fiscal year for which such statements have been filed;
(c) the Registrant’s Current Reports on Form 8-K filed on February 14, 2022, April 6, 2022, April 12, 2022, and June 28, 2022 (excluding any portions of a report deemed to have been furnished under Item 2.02 or Item 7.01 and any exhibits included with such Items); and
(d) the description of the Common Stock contained in Exhibit 4.1 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended on December 31, 2021, filed on March 31, 2022), including any amendment or report filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14, or 15(d) of the Exchange Act after the date hereof, and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all the securities offered hereby have been sold or that deregisters the securities offered hereby then remaining unsold, shall also be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference into this Registration Statement.
Any statement contained in a document incorporated or deemed to be incorporated by reference in this Registration Statement 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 other subsequently filed document which also is or is deemed to be incorporated by reference in this Registration Statement modifies or supersedes that statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
|Item 4.||Description of Securities.|
|Item 5.||Interests of Named Experts and Counsel.|
Peter M. Weinberg, General Counsel of the Registrant, previously provided an opinion of counsel as to the legality of the Prior Plan Shares. Mr. Weinberg holds options to purchase shares of the Registrant.
|Item 6.||Indemnification of Directors and Officers.|
Section 145 of the Delaware General Corporation Law (“DGCL”) provides, in general, that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding; provided that such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful.
A Delaware corporation may indemnify directors, officers, employees and other agents of such corporation in an action by or in the right of the corporation under the same conditions above, except that no indemnification is permitted without judicial approval if the person to be indemnified has been adjudged to be liable to the corporation. Where a director, officer, employee or agent of the corporation is successful on the merits or otherwise in the defense of any action, suit or proceeding referred to above or in defense of any claim, issue or matter therein, the corporation must indemnify such person against the expenses (including attorneys’ fees) which he or she actually and reasonably incurred in connection therewith.
Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, except for liability for any:
|•||Breach of the director’s duty of loyalty to the corporation or its stockholders;|
|•||Act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;|
|•||Unlawful payment of dividends or unlawful stock purchase or redemption; or|
|•||Transaction from which the director derives an improper personal benefit.|
The Registrant’s Amended and Restated Certificate of Incorporation and Bylaws provide for the indemnification of its directors and officers to the fullest extent permitted under the DGCL.
As permitted by the DGCL, the Registrant has entered into indemnification agreements with each of its directors and executive officers that require the Registrant to indemnify, to the fullest extent permitted by applicable law, such persons against any and all costs and expenses (including attorneys’, witness or other professional fees) actually and reasonably incurred by such persons in connection with any action, suit or proceeding (including derivative actions), whether actual or threatened, to which any such person may be made a party by reason of the fact that such person is or was a director or officer or is or was acting or serving as an officer, director, employee or agent of the Registrant or any of its affiliated enterprises. The Registrant also maintains officer and director insurance coverage against certain liabilities for actions taken in their capacities as such, including liabilities under the Securities Act.
|Item 7.||Exemption from Registration Claimed.|
|5.1||Opinion of Peter M. Weinberg regarding legality of the common stock previously registered with respect to the Prior Plans) (incorporated by reference to Exhibit 5.1 to the Registrant’s Registration Statement on Form S-8, filed April 22, 2022) (File No. 333-264454))|
|5.2+||Opinion of Perkins Coie LLP|
|23.1+||Consent of BPM LLP, independent registered public accounting firm|
|23.2+||Consent of Perkins Coie LLP (included in opinion filed as Exhibit 5.2)|
|24.1+||Power of Attorney (see signature page)|
|99.1||Knightscope, Inc. 2016 Equity Incentive Plan (incorporated by reference to Exhibit 6.2 to the Registrant’s Regulation A Offering Statement on Form 1-A/A filed on December 7, 2016 (File No. 024-10633))|
|99.2||Knightscope, Inc. 2014 Equity Incentive Plan (incorporated by reference to Exhibit 6.1 to the Registrant’s Regulation A Offering Statement on Form 1-A/A filed on December 7, 2016 (File No. 024-10633))|
|99.3||Knightscope, Inc. 2022 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed with the Commission on June 28, 2022 (File No. 001-41248))|
|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:
(a) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(b) 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 thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and
(c) 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 (1)(a) and (1)(b) above 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 Section 15(d) of the Exchange Act that are incorporated by reference in this 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 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 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.
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 this Form S-8 and has duly caused this Post-Effective Amendment to this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Mountain View, State of California, on August 15, 2022.
|By:||/s/ William Santana Li|
|Name:||William Santana Li|
|Title:||Chairman and Chief Executive Officer|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints William Santana Li, Mallorie Burak, and Peter Weinberg, or any of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her in any and all capacities, to sign any amendments (including any post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, or any of them, 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 to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, 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 Post-Effective Amendment to this Registration Statement has been signed by the following persons in the capacities indicated below on August 15, 2022.
|/s/ William Santana Li||Director, Chairman and Chief Executive Officer (Principal Executive Officer)|
|William Santana Li|
|/s/ Mallorie Burak||Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)|
|/s/ Jackeline V. Hernandez Fentanez||Director|
|Jackeline V. Hernandez Fentanez|
|/s/ Patricia Howell||Director|
|/s/ Suzanne Muchin||Director|
|/s/ Kristi Ross||Director|
|/s/ Linda Keene Solomon||Director|
|Linda Keene Solomon|
|/s/ Patricia Watkins||Director|
August 15, 2022
1070 Terra Bella Avenue
Mountain View, California 94043
|Re:||Post-Effective Amendment No. 1 to Registration Statement on Form S-8 of Shares of Common Stock, par value $0.001 per share, of Knightscope, Inc.|
Ladies and Gentlemen:
We have acted as counsel to you in connection with the preparation of Post-Effective Amendment No. 1 to the Registration Statement on Form S-8 No. 333-264454 (the “Post-Effective Amendment”) under the Securities Act of 1933, as amended (the “Securities Act”), which you are filing with the Securities and Exchange Commission (the “Commission”) with respect to the Prior Plan Shares (as defined below) authorized for issuance under the Prior Plans (as defined below).
On June 23, 2022 (the “Effective Date”), the stockholders of Knightscope, Inc. (“Knightscope”) approved the Knightscope, Inc. 2022 Equity Incentive Plan (the “2022 Plan”) under which new awards will be granted. The total number of shares of Class A Common Stock of Knightscope, par value $0.001 per share, authorized for issuance under the 2020 Plan includes, in addition to 5,000,000 new shares (which are being registered concurrently on a new registration statement on Form S-8), (i) up to 595,669 shares previously authorized for issuance but not granted or subject to outstanding awards under the Knightscope, Inc. 2016 Equity Incentive Plan (the “2016 Plan”) as of the Effective Date and (ii) up to 8,276,383 shares subject to options granted under the 2016 Plan and the Knightscope, Inc. 2014 Equity Incentive Plan (together with the 2016 Plan, the “Prior Plans”) that were outstanding as of the Effective Date and that, on or after such date, cease to be subject to such options, such as due to cancellation, expiration or termination of such options (the shares described in clauses (i) and (ii) being the “Prior Plan Shares”).
We have examined the Post-Effective Amendment and such documents and records of Knightscope as we have deemed necessary for the purposes of this opinion. In giving this opinion, we are assuming the authenticity of all instruments presented to us as originals, the conformity with originals of all instruments presented to us as copies and the genuineness of all signatures.
Based upon and subject to the foregoing, we are of the opinion that any Prior Plan Shares that may be issued pursuant to the 2022 Plan, upon the registration by its registrar of such Prior Plan Shares and the issuance thereof by Knightscope in accordance with the terms of the 2022 Plan, and the receipt of consideration therefor in accordance with the terms of the 2022 Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the Post-Effective Amendment. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Perkins Coie LLP
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Post-Effective Amendment No. 1 to the Registration Statement on Form S-8 of our report dated March 31, 2022, relating to the financial statements of Knightscope, Inc., which appears in the Annual Report on Form 10-K of Knightscope, Inc. for the year ended December 31, 2021.
/s/ BPM LLP
San Jose, California
August 15, 2022