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Form S-8 Twin Vee PowerCats, Co.

July 23, 2021 3:57 PM EDT

 

 As filed with the Securities and Exchange Commission on July 26, 2021

 

Registration No. 333-


 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

TWIN VEE POWERCATS CO.

(Exact name of registrant as specified in its charter)

 

Delaware   27-1417610
(State or other jurisdiction of
incorporation or organization)
  (I.R.S. Employer No.)   Identification Number)

 

3101 S. US-1

Ft. Pierce, Florida 34982
(772) 429-2525

(Address, including ZIP code, and telephone number, including

area code, of registrant’s principal executive office)

 

TWIN VEE POWERCATS CO. AMENDED AND RESTATED 2021 STOCK INCENTIVE PLAN

(Full title of the Plan)

 

Joseph C. Visconti

President and Chief Executive Officer

Twin Vee Powercats Co.
3101 S. US-1

Ft. Pierce, Florida 34982

(772) 429-2525

(Name, address and telephone number of agent for service)

 

with copies to:

 

Leslie Marlow, Esq.

Hank Gracin, Esq.

Patrick J. Egan, Esq.

Gracin & Marlow, LLP 

The Chrysler Building

405 Lexington Avenue, 26 th Floor

New York, New York 10174

(212) 907-6457

(Name, address and telephone number)

 

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 file    ☒ (Do not check if a smaller reporting company) 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 13(a) of the Exchange Act. ☒

 

 
 

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities to be Registered   Amount to be
Registered(1)
  Proposed
Maximum
Aggregate
Offering Price
Per Share (3)
  Proposed
Maximum
Aggregate
Offering Price
  Amount of
Registration Fee
Common Stock, par value $0.001 per share   1,000,000 shares (2)   $ 6.07     $ 6,070,000     $ 662.24  

 


(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of common stock which become issuable under the above-named plans by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of our outstanding shares of common stock. Pursuant to Rule 416(c) under the Securities Act, this Registration Statement shall also cover an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plans described herein.
   
(2) Represents shares of common stock reserved for issuance under the Twin Vee PowerCats Co. Amended and Restated 2021 Stock Incentive Plan (the “2021 Plan”). The 2021 Plan provides that additional shares will automatically be added to the shares authorized for issuance under the 2021 Plan on January 1 of each year. The number of shares added each year will be equal to the lesser of: (i) 4.5% of the outstanding shares on the immediately preceding December 31 or (ii) such lesser amount as determined by the Company’s compensation committee.
   
(3)     Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457 of the Securities Act, and based on $6.07 per share, which is the average of the high and low prices of the registrant’s common stock as reported on the Nasdaq Capital Market on July 22, 2021.    

 


 

Proposed sales to take place as soon after the effective date of this registration statement as awards are granted, exercised or distributed under the above-named plans.

 

 
 

 

PART I 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

 Item 1. Plan Information.

 

The documents containing the information specified in this Item 1 will be sent or given to participants as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.

 

Item 2. Registrant Information and Employee Plan Annual Information.

 

The documents containing the information specified in this Item 2 will be sent or given to participants as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.

 

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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 filed with the Securities and Exchange Commission (“SEC”):

 

  (a) The prospectus filed by the registrant with the SEC pursuant to Rule 424(b) under the Securities Act, on July 22, 2021, relating to the Registration Statement on Form S-1, as amended (File No. 333-255134 and 333-258058), which contains the registrant’s audited financial statements for the latest fiscal year for which such statements have been filed; and
(b)The description of the registrant’s common stock contained in the registrant’s Registration Statement on Form 8-A (File No. 001-40623), filed by the registrant with the SEC under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on July 16, 2021, including any amendments or reports filed for the purpose of updating such description.

 

All documents that the registrant subsequently files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (after the date of this Registration Statement (except for any information deemed furnished to, rather than filed with, the SEC) and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all of the shares of common stock offered have been sold or which deregisters all of such shares then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of the filing of such documents.

 

Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded 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 herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Under no circumstances will any information filed under current items 2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference unless such Form 8-K expressly provides to the contrary.

 

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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 Delaware General Corporation Law, or the DGCL, authorizes a corporation to indemnify its directors and officers against liabilities arising out of actions, suits and proceedings to which they are made or threatened to be made a party by reason of the fact that they have served or are currently serving as a director or officer to a corporation. The indemnity may cover expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the director or officer in connection with any such action, suit or proceeding. Section 145 permits corporations to pay expenses (including attorneys’ fees) incurred by directors and officers in advance of the final disposition of such action, suit or proceeding. In addition, Section 145 provides that a corporation has the power to purchase and maintain insurance on behalf of its directors and officers against any liability asserted against them and incurred by them in their capacity as a director or officer, or arising out of their status as such, whether or not the corporation would have the power to indemnify the director or officer against such liability under Section 145.

 

We have adopted provisions in our certificate of incorporation and bylaws that limit or eliminate the personal liability of our directors to the fullest extent permitted by the DGCL, as it now exists or may in the future be amended. Consequently, a director will not be personally liable to us or our stockholders for monetary damages or breach of fiduciary duty as a director, except for liability for:

 

any breach of the director’s duty of loyalty to us or our stockholders; any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; any unlawful payments related to dividends or unlawful stock purchases, redemptions or other distributions; or any transaction from which the director derived an improper personal benefit.

 

These limitations of liability do not alter director liability under the federal securities laws and do not affect the availability of equitable remedies such as an injunction or rescission.

 

In addition, our bylaws provide that:

 

we will indemnify our directors, officers and, in the discretion of our board of directors, certain employees to the fullest extent permitted by the DGCL, as it now exists or may in the future be amended; and
  we will advance reasonable expenses, including attorneys’ fees, to our directors and, in the discretion of our board of directors, to our officers and certain employees, in connection with legal proceedings relating to their service for or on behalf of us, subject to limited exceptions.

 

We also maintain general liability insurance which covers certain liabilities of our directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers, including liabilities under the Securities Act.

 

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Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

Exhibit   Description
3.1   Certificate of Incorporation of Twin Vee Powercats Co. (Incorporated by reference to Exhibit 3.6 to the Registrant’s Registration Statement on Form S-1, filed on April 8, 2021 (File No. 333-255134))
3.2   Bylaws of Twin Vee Powercats Co. (Incorporated by reference to Exhibit 3.7 to the Registrant’s Registration Statement on Form S-1, filed on April 8, 2021 (File No. 333-255134))
5.1*   Opinion of Gracin & Marlow, LLP regarding Legality of Shares
23.1*   Consent of Grassi & Co. CPAs, P.C., Independent Registered Public Accounting Firm
23.2*   Consent of Gracin & Marlow, LLP (contained in Exhibit 5.1)
24.1   Power of Attorney (contained on signature page hereto)
99.1   Twin Vee Powercats Co. Amended and Restated 2021 Stock Incentive Stock Plan (Incorporated by reference to Exhibit 10.2 to the Registrant’s Registration Statement on Form S-1, filed on June 2, 2021 (File No. 333-255134)
99.2   Form of Stock Option Grant Notice, Option Agreement (Incentive Stock Option or Nonstatutory Stock Option) and Notice of Exercise under the Amended and Restated 2021 Stock Incentive Plan (Incorporated by reference to Exhibit 10.2 to the Registrant’s Registration Statement on Form S-1, filed on June 2, 2021 (File No. 333-255134)

 


 

* Filed herewith.

 

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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 the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information in the 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) of this section 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 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 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.

 

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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 Ft. Pierce, Florida, on the 23rd day of July, 2021.

 

  TWIN VEE POWERCATS CO.
   
  By: /s/ Joseph C. Visconti 
  Name: Joseph C. Visconti
  Title: President and Chief Executive Officer

 

POWER OF ATTORNEY AND SIGNATURES

 

KNOW ALL BY THESE PRESENT, that each individual whose signature appears below hereby constitutes and appoints Joseph C. Visconti as such person’s true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for such person in such person’s name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission granting unto each 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 and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that any said attorney-in-fact and agent, or any substitute or substitutes of any of them, 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/ Joseph C. Visconti   Chief Executive Officer and President    
Joseph C. Visconti   (Principal Executive Officer)   July 23, 2021
         
/s/ Donna Barnett   Chief Financial Officer (Principal Financial Officer and    
Donna Barnett   Principal Accounting Officer)   July 23, 2021
         
/s/ Preston Yarborough   Vice President and Director    
Preston Yarborough       July 23, 2021
         
/s/ James Melvin   Director    
James Melvin       July 23, 2021
         
/s/ Neil Ross   Director    
Neil Ross       July 23, 2021
         
/s/ Steven A. Shallcross   Director    
Steven A. Shallcross       July 23, 2021

 

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 Exhibit 5.1

 

 

The Chrysler Building

405 Lexington Avenue, 26 th Floor

New York, New York 10174

Telephone: (212) 907-6457

Facsimile: (212) 208-4657

 

July 23, 2021

 

The Board of Directors

Twin Vee Powercats Co.
3101 S. US-1 

Ft. Pierce, Florida 34982

 

  Re: Registration Statement on Form S-8

 

Gentlemen:

 

We have acted as counsel to you in connection with your filing of a Registration Statement on Form S-8 (the “Registration Statement”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), on or about the date hereof relating to an aggregate of 1,000,000 shares (the “Shares”) of common stock, $0.001 par value per share (“Common Stock”), of Twin Vee Powercats Co., a Delaware corporation (the “Company”), that may be issued pursuant to the Company’s 2021 Stock Incentive Plan (the “Plan”).

 

We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinion set forth below, on certificates of officers of the Company.

 

The opinion set forth below is limited to the Delaware General Corporation Law.

 

For purposes of the opinion set forth below, we have assumed that no event occurs that causes the number of authorized shares of Common Stock available for issuance by the Company to be less than the number of then unissued Shares.

 

Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms of the Plans, will be validly issued, fully paid and nonassessable.

 

We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the Registration Statement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.

 

  Very truly yours,
   
  /s/ GRACIN & MARLOW, LLP
GRACIN & MARLOW, LLP

 

 

 

 

Exhibit 23.1

 

 

 

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 15, 2021, except for Notes 1, 13 and 14, as to which date is May 28, 2021, relating to the financial statements of Twin Vee Catamarans, Inc. as of and for the years ended December 31, 2020 and 2019, included in the Company’s Registration Statement on Form S-1, as amended (333-255134), filed with the Securities and Exchange Commission.

  

/s/Grassi & Co., CPAs, P.C.

 

Jericho, New York

July 23, 2021

 

 

 



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