Embark Technology, Inc. (the “Company”
or “Embark”) is filing this Amendment No. 1 to the Registration Statement on Form S-1 (File No. 333-265338)
solely to file Exhibits 5.1 and 23.2 and incorporate by reference Exhibits 10.25 and 10.26. Accordingly, this amendment consists only
of the facing page, this explanatory note, Part II of the Registration Statement, the signature pages to the Registration Statement
and the filed exhibit. No changes are being made to the preliminary prospectus or Items 14 or 15 of Part II to the Registration
Statement. Accordingly, the preliminary prospectus has been omitted from this filing.
Item 14. Indemnification of Directors and Officers.
Subsection (a) of Section 145
of the General Corporation Law of the State of Delaware (the “DGCL”) empowers a corporation to indemnify any person who was
or is a party or who 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 the
person 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, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding if the person acted in good faith and in a manner the 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 the person’s conduct was unlawful.
Subsection (b) of Section 145
empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any 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 the person
acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless
and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section 145 further provides that to
the extent a director or officer of a corporation has been successful on the merits or otherwise in the defense of any action, suit
or proceeding referred to in subsections (a) and (a) of
Section 145, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including
attorneys’ fees) actually and reasonably incurred by such person in connection therewith; that indemnification provided for by
Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and the
indemnification provided for by Section 145 shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of such person’s heirs,
executors and administrators. Section 145 also empowers the corporation to purchase and maintain insurance on behalf of any
person who 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, employee or agent of another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify such person against such liabilities under
Section 145.
Section 102(b)(7) of
the DGCL provides that a corporation’s certificate of incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders or monetary damages for breach of fiduciary duty as a director, provided
that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director’s duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit.
Additionally, our Certificate of
Incorporation limits the liability of our directors to the fullest extent permitted by the DGCL, and our Bylaws provide that we will
indemnify them to the fullest extent permitted by such law. We have entered into and expect to continue to enter into agreements to
indemnify our directors, executive officers and other employees as determined by our board of directors. Under the terms of such
indemnification agreements, we are required to indemnify each of our directors and officers, to the fullest extent permitted by the
laws of the state of Delaware, if the basis of the indemnitee’s involvement was by reason of the fact that the indemnitee is
or was our director or officer or was serving at our request in an official capacity for another entity. We must indemnify our
officers and directors against all reasonable fees, expenses, charges and other costs of any type or nature whatsoever, including
any and all expenses and obligations paid or incurred in connection with investigating, defending, being a witness in, participating
in (including on appeal), or preparing to defend, be a witness or participate in any completed, actual, pending or threatened
action, suit, claim or proceeding, whether civil, criminal, administrative or investigative, or establishing or enforcing a right to
indemnification under the indemnification agreement. The indemnification agreements also require us, if so requested, to advance all
reasonable fees, expenses, charges and other costs that such director or officer incurred, provided that such person will return any
such advance if it is ultimately determined that such person is not entitled to indemnification by us. Any claims for
indemnification by our directors and officers may reduce our available funds to satisfy successful third-party claims against us and
may reduce the amount of money available to us.
Item 17. Undertakings.
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 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 SEC 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 (i), (ii) and
(iii) do not apply if the registration statement is on Form S-1 and the information required to be included in a post-
effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of 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; |
| (4) | that, for the purpose of determining liability under the Securities
Act to any purchaser: |
Each prospectus filed pursuant to
Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on
Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made
in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to
such date of first use; and
| (5) | that, for the purpose of determining liability of the registrant
under the Securities Act to any purchaser in the initial distribution of the securities,
the undersigned registrant undertakes that in a primary offering of securities of the undersigned
registrant pursuant to this registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the undersigned registrant will
be a seller to the purchaser and will be considered to offer or sell such securities to such
purchaser: |
| (a) | any preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule 424; |
| (b) | any free writing prospectus relating to the offering prepared by
or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
| (c) | the portion of any other free writing prospectus relating to the
offering containing material information about the undersigned registrant or its securities
provided by or on behalf of the undersigned registrant; and |
| (d) | any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser. |
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 SEC, 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.
