As
filed with the Securities and Exchange Commission on September 25, 2023
Registration No. 333-______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
FLUX POWER HOLDINGS, INC. |
(Exact name of registrant as specified in its charter) |
Nevada |
|
92-355008 |
(State
or other jurisdiction of
incorporation or organization |
|
(I.R.S.
Employer
Identification Number) |
2685
S. Melrose Drive
Vista,
California 92081
(Address
of Principal Executive Office, including zip code)
Flux
Power Holdings, Inc. 2023 Employee Stock Purchase Plan
(Full
Title of the Plan)
Ronald
Dutt
c/o Flux Power Holdings, Inc.
2685 S. Melrose Drive
Vista,
California 92081
(Name
and Address of Agent for Service)
877-505-3589
(Telephone
number, including area code, of agent for service)
Please
send copies of all communications to:
John
P. Yung, Esq.
Deborah
K. Seo, Esq.
Lewis
Brisbois Bisgaard & Smith LLP
633
West 5th Street, Suite 4000
Los
Angeles, CA 90071
(213)
358-6174
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting
company. See definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company”
in Rule 12b-2 of the Exchange Act. (Check one):
Large
accelerated filer |
☐ |
Accelerated
filer |
☐ |
Non-accelerated
filer |
☒ |
Small
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 13(a) of the Exchange Act. ☐
Explanatory Note
At
the 2023 Annual Meeting of Stockholders of the Company held on April 20, 2023 (the “Annual Meeting”), the Company’s
stockholders approved the Flux Power Holdings, Inc. 2023 Employee Stock Purchase Plan (the “2023 ESPP”). The 2023 ESPP was
approved by the Board on March 6, 2023, subject to stockholder approval. The 2023 ESPP enables eligible employees of the Company and
certain of its subsidiaries (a “Participating Subsidiary”) to use payroll deductions to purchase shares of the Company’s
Common Stock and acquire an ownership interest in the Company. The maximum aggregate number of shares of the Company’s Common Stock
that have been reserved as authorized for grant under the 2023 ESPP is 350,000 shares, subject to adjustment as provided for in the 2023
ESPP. Participation in the 2023 ESPP is voluntary and is limited to eligible employees (as such term is defined in the 2023 ESPP) of
the Company or a Participating Subsidiary who (i) has been employed by the Company or a Participating Subsidiary for at least 90 days
and (ii) is customarily employed for at least twenty (20) hours per week and more than five (5) months in any calendar year. Each eligible
employee may authorize payroll deductions of 1-15% of the eligible employee’s compensation on each pay day to be used to purchase
up to 1,500 shares of Common Stock for the employee’s account occurring during an offering period. The 2023 ESPP has a term of
ten (10) years commencing on April 20, 2023, the date of approval by the Company’s stockholders, unless otherwise earlier terminated.
PART I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
documents containing the information specified in “Item 1. Plan Information” and “Item 2. Registrant Information and
Employee Plan Annual Information” of Form S-8 will be sent or given to participants as specified by Rule 428(b)(1) under the Securities
Act of 1933, as amended (the “Securities Act”). Such documents are not required to be, and are not, filed with the Securities
and Exchange Commission (the “Commission”) either as part of this Registration Statement or as a prospectus or prospectus
supplement pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of Form S-8, 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
Registrant hereby incorporates by reference into this Registration Statement the following documents and information previously filed
with the Securities and Exchange Commission (“Commission”):
|
● |
The
Registrant’s Annual Report on Form 10-K for the fiscal year ended June 30, 2023, filed with the Commission on September 21,
2023 (“Form 10-K”); |
|
|
|
|
● |
the
description of Registrant’s Common Stock contained in the Description of Securities filed as Exhibit 4(vi) to the Registrant’s
Form 10-K. |
All
documents, reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act, after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining unsold, shall 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,
reports and definitive proxy or information statement, or portions thereof, which are 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 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 which also is or is deemed to
be incorporated by reference herein modifies or supersedes that 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 |
Nevada Law
Section
78.138 of the Nevada Revised Statute (“NRS”) provides that a director or officer will not be individually liable unless it
is proven that (i) the director’s or officer’s acts or omissions constituted a breach of his or her fiduciary duties, and
(ii) such breach involved intentional misconduct, fraud or a knowing violation of the law.
Section
78.7502 of NRS permits a company to indemnify its directors and officers against expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with a threatened, pending or completed action, suit or proceeding if the officer or director
(i) is not liable pursuant to NRS 78.138 or (ii) acted in good faith and in a manner the officer or director reasonably believed to be
in or not opposed to the best interests of the corporation and, if a criminal action or proceeding, had no reasonable cause to believe
the conduct of the officer or director was unlawful.
Section
78.751 of NRS permits a Nevada company to indemnify its officers and directors against expenses incurred by them in defending a civil
or criminal action, suit or proceeding as they are incurred and in advance of final disposition thereof, upon receipt of an undertaking
by or on behalf of the officer or director to repay the amount if it is ultimately determined by a court of competent jurisdiction that
such officer or director is not entitled to be indemnified by the company. Section 78.751 of NRS further permits the company to grant
its directors and officers additional rights of indemnification under its Articles of Incorporation or bylaws or otherwise.
Section
78.752 of NRS provides that a Nevada company may purchase and maintain insurance or make other financial arrangements on behalf of any
person who is or was a director, officer, employee or agent of the company, or is or was serving at the request of the company as a director,
officer, employee or agent of another company, partnership, joint venture, trust or other enterprise, for any liability asserted against
him and liability and expenses incurred by him in his capacity as a director, officer, employee or agent, or arising out of his status
as such, whether or not the company has the authority to indemnify him against such liability and expenses.
Charter
Provisions and Other Arrangements of the Registrant
Our
Articles of Incorporation provide that no director or officer of the Registrant will be personally liable to the Registrant or any of
its stockholders for damages for breach of fiduciary duty as a director or officer; provided, however, that the foregoing provision shall
not eliminate or limit the liability of a director or officer (i) for acts or omissions which involve intentional misconduct, fraud or
knowing violation of law, or (ii) the payment of dividends in violation of Section 78.300 of NRS. In addition, our bylaws implement the
indemnification and insurance provisions permitted by Chapter 78 of the NRS by providing that:
The
Registrant shall indemnify its directors to the fullest extent permitted by the NRS and may, if and to the extent authorized by the Board
of Directors, so indemnify its officers and any other person whom it has the power to indemnify against liability, reasonable expense
or other matter whatsoever.
The
Registrant may at the discretion of the Board of Directors purchase and maintain insurance on behalf of any person who holds or who has
held any position identified in the paragraph above against any and all liability incurred by such person in any such position or arising
out of his status as such.
Indemnification
Agreements
The
Registrant has entered into Indemnification Agreements with each of its directors and officers, and maintains directors’ and officers’
liability insurance under which its directors and officers are insured against loss (as defined in the policy) as a result of certain
claims brought against them in such capacities.
Pursuant
to and subject to the terms, conditions and limitations set forth in the Indemnification Agreement, the Registrant has agreed to indemnify
each Indemnitee, against any and all expenses incurred in connection with the Indemnitee’s service as the Registrant’s officer,
director and or agent, or is or was serving at the Registrant’s request as a director, officer, employee, agent or advisor of another
corporation, partnership, joint venture, trust, limited liability company, or other entity or enterprise but only if the Indemnitee acted
in good faith and in a manner he reasonably believed to be in or not opposed to our best interest, and in the case of a criminal proceeding,
had no reasonable cause to believe that his conduct was unlawful. In addition, the indemnification provided in the indemnification agreement
is applicable whether or not negligence or gross negligence of the Indemnitee is alleged or proven. Additionally, the Indemnification
Agreement establishes processes and procedures for indemnification claims, advancement of expenses and costs and contribution obligations.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, or control persons, 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 by such 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
offered, the Registrant will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
Item
7. |
Exemption
from Registration Claimed |
Not
applicable.
*
Filed herewith
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 of 1933; |
|
(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 a 20% change in the maximum aggregate offering price
set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
|
(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) herein 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 (15 U.S.C. 78m or 78o(d)) 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 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.
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 Vista, California, on September 25, 2023.
|
FLUX
POWER HOLDINGS, INC.,
a
Nevada corporation |
|
|
|
|
By: |
/s/
Ronald F. Dutt |
|
Name:
|
Ronald
F. Dutt |
|
Title:
|
Chief
Executive Officer |
POWER
OF ATTORNEY AND SIGNATURE
Known
All Persons By These Presents, that each person whose signature appears below appoints Ronald F. Dutt as his or her true and lawful attorney-in-fact
and agent, with full power of substitution, for him or her and in his or her name, place and stead, to sign any amendment (including
post-effective amendments) to this registration statement (or any other registration statement for the same offering that is to be effective
upon filing pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Commission, granting unto said attorney-in-fact and agent, 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 may
do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or any of them, or of his substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons
in the capacities and on the date indicated.
Signature |
|
Capacity |
|
Date |
|
|
|
|
|
/s/
Ronald F. Dutt |
|
Chief
Executive Officer, President and Director |
|
September
25, 2023 |
Ronald
F. Dutt |
|
(Principal
Executive Officer) |
|
|
|
|
|
|
|
/s/
Charles A. Scheiwe |
|
Chief
Financial Officer |
|
September
25, 2023 |
Charles
A. Scheiwe |
|
(Principal
Financial and Accounting Officer) |
|
|
|
|
|
|
|
/s/
Michael Johnson |
|
Director |
|
September
25, 2023 |
Michael
Johnson |
|
|
|
|
|
|
|
|
|
/s/
Cheemin Bo-Linn |
|
Director |
|
September
25, 2023 |
Cheemin
Bo-Linn |
|
|
|
|
|
|
|
|
|
|
|
Director |
|
|
Lisa
Walters-Hoffert |
|
|
|
|
|
|
|
|
|
/s/
Dale Robinette |
|
Director |
|
September
25, 2023 |
Dale
Robinette |
|
|
|
|
Exhibit 5.1
|
2020
West El Camino Avenue, Suite 700
Sacramento,
California 95833
Phone:
916-564-5400
Fax:
916-564-5444 |
September
25, 2023
Board
of Directors
Flux
Power Holdings, Inc.
2685
S. Melrose Drive
Vista,
CA 92081 |
|
|
Re: |
Common
Stock of Flux Power Holdings, Inc. |
|
|
Registration
Statement on Form S-8 |
Ladies
and Gentlemen:
We
have acted as counsel to Flux Power Holdings, Inc. a Nevada corporation (the “Company”), in connection with the registration
of 350,000 shares (the “Shares”) of the Company’s common stock, par value $0.001 (the “Common Stock”),
under the Securities Act of 1933, as amended (the “Securities Act”), issuable pursuant to the Flux Power Holdings, Inc. 2023
Employee Stock Purchase Plan (the “Plan”), as further described in the Company’s registration statement on Form S-8
filed under the Securities Act (the “Registration Statement”).
For
the purpose of rendering this opinion, we examined originals or copies of such documents as we deemed to be relevant, including (i) the
Registration Statement, (ii) the Company’s Amended and Restated Articles of Incorporation, as amended, (iii) the Amended and Restated
Bylaws, as amended, and (iv) written resolutions of the Company’s board of directors related to the Plan, as the basis for the
opinion set forth below. In conducting our examination, we assumed without investigation, the genuineness of all signatures, the correctness
of all certificates, the authenticity of all documents submitted to us as originals, the conformity to all original documents of all
documents submitted as certified or photostatic copies, and the authenticity of the originals of such copies, and the accuracy and completeness
of all records made available to us by the Company. In addition, in rendering this opinion, we assume that the Shares will be offered
in the manner and on the terms identified or referred to under the Plan and in the Registration Statement, including all amendments thereto.
Our
opinion is limited solely to matters set forth herein. We express no opinion as to the law of any other jurisdiction other than the laws
of the State of Nevada and the laws of the United States.
ARIZONA
• CALIFORNIA • COLORADO • CONNECTICUT • DELAWARE • FLORIDA • GEORGIA • ILLINOIS • INDIANA •
KANSAS • KENTUCKY • LOUISIANA
MARYLAND • MASSACHUSETTS • MINNESOTA • MISSISSIPPI • MISSOURI • NEVADA • NEW JERSEY • NEW MEXICO •
NEW YORK • NORTH CAROLINA
OHIO • OREGON • PENNSYLVANIA • RHODE ISLAND • TENNESSEE • TEXAS • UTAH • VIRGINIA • WASHINGTON
• WASHINGTON D.C. • WEST VIRGINIA
September 25, 2023
Page
2
Based
upon and subject to the foregoing, after giving due regard to such issues of law as we deemed relevant, and assuming that (i) the Registration
Statement becomes and remains effective, and the prospectus which is part thereof (the “Prospectus”), and the Prospectus
delivery procedures with respect thereto, fulfill all of the requirements of the Securities and Exchange Act of 1933, as amended, throughout
all periods relevant to the opinion, (ii) all offers and sales of the Shares have been and will be made in compliance with the securities
laws of the states, having jurisdiction thereof, (iii) the individual grants, issuance or awards under the Plan are duly authorized by
all necessary corporate action (and the agreements and awards duly adopted thereunder and in accordance therewith), (iv) such Shares
are issued by the Company against payment therefor in the circumstances contemplated by the Plan and related agreements, and (v) the
shares of Common Stock currently reserved for issuance under the Plan will remain available for the issuance of the Shares, we are of
the opinion that the Shares to be issued in accordance with the requirements of the Plan, when issued and sold pursuant to the terms
of and in the manner set forth in the Plan and related agreements under the Plan will be, validly issued, fully paid, and nonassessable.
We
hereby consent in writing to the use of our opinion as an exhibit to the Registration Statement and any amendment thereto. By giving
such consent, we do not thereby admit that we come within the category of persons where consent is required under Section 7 of the Securities
Act or the rules and regulations of the Securities and Exchange Commission.
|
Very
truly yours, |
|
|
|
/s/
Lewis Brisbois Bisgaard & Smith LLP |
|
|
|
LEWIS
BRISBOIS BISGAARD & SMITH llp |
LEWIS
BRISBOIS BISGAARD & SMITH LLP
www.lewisbrisbois.com
Exhibit
23.2
Consent
of Independent Registered Public Accounting Firm
We
consent to the incorporation by reference in this Registration Statement on Form S-8 of Flux Power Holdings, Inc. of our report dated
September 21, 2023, relating to the consolidated financial statements of Flux Power Holdings, Inc. as of June 30, 2023 and 2022 and for
the years then ended appearing in the Annual Report on Form 10-K of Flux Power Holdings, Inc. for the year ended June 30, 2023.
/s/ Baker Tilly US, LLP
San Diego, CA
September 25, 2023
Exhibit
107
CALCULATION
OF FILING FEE TABLE
Form
S-8
(Form
Type)
Flux
Power Holdings, Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered and Carry Forward Securities
Security Type | |
Security Class Type | |
Fee Calculation Rate 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 $0.001 per share | |
Other(2) | |
| 350,000 | (3) | |
$ | 4.07 | | |
$ | 1,424,500.00 | | |
$ | 0.0001102 | | |
$ | 156.98 | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | |
Total Offering Amount | | | |
$ | 1,424,500.00 | | |
| | | |
$ | 156.98 | |
Total Fee Offsets | | | |
| | | |
| | | |
| - | |
Net Fees Due | | | |
| | | |
| | | |
$ | 156.98 | |
(1) |
Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (“Securities Act”), this Registration Statement also covers
any additional securities that may be offered or issued in connection with any stock split, stock dividend or similar transaction.
|
|
|
(2) |
Estimated in accordance with Rules 457(c) and (h) under
the Securities Act solely for the purpose of calculating the registration fee based on the average the high and low sale price of
the Registrant’s common stock, par value $0.001 per share (the “Common Stock”) as reported on the Nasdaq Stock
Market LLC on September 22, 2023 which date is within five business days prior to the filing of this Registration Statement. |
|
|
(3) |
Represents the maximum of 350,000 shares of the Registrant’s
Common Stock currently reserved for issuance pursuant to the Flux Power Holdings, Inc. 2023 Employee Stock Purchase Plan (the “ESPP”),
and subject to adjustment as provided for in the ESPP. |
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