As filed with the Securities and Exchange Commission
on March 4, 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
|
THE LION
ELECTRIC COMPANY
(Exact name of registrant
as specified in its charter) |
|
Québec, Canada
(State or other jurisdiction of
incorporation or organization) |
Not Applicable
(I.R.S. Employer
Identification No.) |
|
921 chemin de la Rivière-du-Nord
Saint-Jérôme, Québec, J7Y
5G2
Canada
(Address of Principal Executive Offices) |
J7Y 5G2
(Zip Code) |
The Lion Electric Company Omnibus Incentive
Plan, effective as of May 6, 2021
The Lion Electric Company Second Amended and
Restated Stock Option Plan for
Directors, Executive Officers, Employees and Consultants, effective as of May 6, 2021
(Full title of the plan)
Puglisi & Associates
850 Library Avenue, Suite 204
Newark, Delaware 19711
(Name and address of agent for service)
(302) 738-6680
(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 x |
| Non-accelerated filer ¨ |
Smaller reporting company ¨ |
| |
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. ¨
THE LION ELECTRIC COMPANY
REGISTRATION STATEMENT ON FORM S-8
This Registration Statement on Form S-8 is
being filed by The Lion Electric Company (the “Company” or the “Registrant”) to register 13,917,294
common shares of the Company (“Omnibus Shares”) that may be issued pursuant to the Company’s Omnibus Incentive
Plan, effective May 6, 2021 (the “Omnibus Plan”), and 8,701,199 common shares of the Company (“Legacy
Shares”, and, together with the Omnibus Shares, the “Shares”) that may be issued pursuant to the Company’s
legacy equity-based incentive plan adopted in November 2017, as amended and restated in December 2019 and May 2021 (the
“Legacy Plan”, and together with the Omnibus Plan, the “Plans”). In addition, this Registration
Statement registers the resale of up to 385,717 Shares that may be issued to the selling shareholders pursuant to the grant of options,
deferred share units, performance share units, and/or restricted share units under the Plans, subject to exercise, vesting and settlement.
This Registration Statement contains two parts.
The first part contains a “reoffer” prospectus prepared in accordance with Part I of Form S-3 (in accordance with
Instruction C of the General Instructions to Form S-8). The reoffer prospectus permits reoffers and resales of those Shares referred
to above that constitute “restricted securities,” within the meaning of Form S-8, by the selling shareholders named herein.
The second part contains information required to be set forth in the Registration Statement pursuant to Part II of Form S-8.
REOFFER PROSPECTUS
385,717 SHARES
The Lion Electric
Company
COMMON SHARES
This reoffer prospectus relates to 385,717 common
shares, no par value (the “Shares”), of The Lion Electric Company (“Lion,” “we,”
“us,” “our,” or the “Company”) which may be reoffered and resold from time to
time by the Selling Shareholders, named herein, who are directors, officers, employees or consultants of the Company or a subsidiary thereof,
and that will be acquired, by the grant of options, deferred share units, performance share units, and restricted share units prior to
the filing of this Registration Statement under (i) The Lion Electric Company Omnibus Incentive Plan, effective May 6, 2021
(the “Omnibus Plan”), and/or (ii) The Lion Electric Company Second Amended and Restated Stock Option Plan for
Directors, Executive Officers, Employees and Consultants, effective as of May 6, 2021 (the “Legacy Plan”, and,
together with the Omnibus Plan, the “Plans”) for such Selling Shareholders’ own account. We will not receive
any proceeds from any sale of the Shares offered pursuant to this reoffer prospectus.
The Selling Shareholders may offer and sell the
Shares at various times and in various types of transactions, including sales in the open market, sales in negotiated transactions and
sales by a combination of these methods. The Shares may be sold at the market price of the common shares of the Company (the “Common
Shares”) at the time of a sale, at prices relating to the market price over a period of time, or at prices negotiated with the
buyers of the Shares. The Shares may be sold through underwriters or dealers which the Selling Shareholders may select. If underwriters
or dealers are used to sell the Shares, we will name them and describe their compensation in a reoffer prospectus supplement. For a description
of the various methods by which the Selling Shareholders may offer and sell the Shares described in this reoffer prospectus, see the section
entitled “Plan of Distribution.”
Our Common Shares are listed on the Toronto Stock
Exchange (the “TSX”) and the New York Stock Exchange (the “NYSE”) under the symbol “LEV.”
On February 29, 2024, the closing price of our Common Shares was US$1.47 (C$ 1.99) on the TSX and was US$1.46 (C$1.98) on the NYSE.
Investing in our Common Shares involves a high
degree of risk. See “Risk Factors” section of our filings with the Securities and Exchange Commission (the “Commission”)
incorporated by reference herein and the applicable reoffer prospectus supplement.
Neither the Commission nor any state securities
commission has approved or disapproved of these securities or determined if this reoffer prospectus is truthful or complete. Any representation
to the contrary is a criminal offense.
The date of this reoffer prospectus is March 4,
2024
If you are in a jurisdiction where offers to
sell, or solicitations of offers to purchase, the securities offered by this document are unlawful, or if you are a person to whom it
is unlawful to direct these types of activities, then the offer presented in this document does not extend to you. We have not authorized
anyone to provide any information other than that contained in this reoffer prospectus, in any prospectus supplement or in any free writing
prospectus prepared by or on behalf of us or to which we have referred to you. We do not take responsibility for, and we do not provide
any assurance as to the reliability of, any other information that others may give you. We have not authorized any other person to provide
you with different information. The information contained in this document speaks only as of the date of this document, unless the information
specifically indicates that another date applies.
TABLE OF CONTENTS
THE COMPANY
The Lion Electric Company is a reporting issuer
in Canada, with our Common Shares listed for trading on the TSX and on the NYSE under the symbol “LEV.”
Lion’s business focuses on the design, development,
manufacturing, and distribution of all-electric medium- and heavy-duty urban vehicles (“EV”). Each Lion vehicle is
purpose-built for electric and entirely designed and assembled in-house, with its own chassis, truck cabin or bus body, proprietary battery
technology with modular energy capacity and Lion software integration. Lion’s vehicles are assembled without relying on traditional
combustion-engine vehicle retrofitting or third-party integrators. For certain specialized truck applications, Lion has also established
partnerships and other relationships with third-party suppliers to enable it to offer to its clients a variety of vehicle configurations,
upfit equipment options and applications which range from classic boxes for box trucks to other specialized applications such as all-electric
ambulances and utility trucks.
Lion has more than 13 years of focused all-electric
vehicle research and development, manufacturing and commercialization experience. Lion’s vehicles and technology benefit from over
22 million miles driven by more than 1,850 of its purpose-built all-electric vehicles that are on the road today, in real-life operating
conditions.
Lion’s medium and heavy-duty EVs are specifically
designed to address the needs of the sub-250 mile (or 400-km) mid-range urban market, which is generally viewed as well suited for electrification
given vehicles are typically driven over a relatively modest distance and return to base at the end of every workday. Mid-range EV applications
require less battery capacity, generally resulting in a lower vehicle cost, allowing for a suitable payload, and avoiding the need for
an extensive charging station network alongside vehicle routes, all of which are viewed as contributing to a suitable use case and provide
the potential for favorable economics when compared to incumbent diesel solutions.
Lion complements its product offering with various
services available on-site at Lion’s experience centers, which are dedicated spaces where prospective customers, policymakers and
other transportation industry stakeholders can familiarize themselves with Lion’s EVs, learn about their specifications and advantages,
obtain sales support and meet sales representatives, discuss grant and subsidy assistance, obtain charging infrastructure assistance,
receive vehicle training, maintenance support and have existing vehicles serviced. Services available on-site at Lion’s experience
centers include product demonstrations and sales support, full-service training, charging infrastructure assistance and maintenance support.
Lion has experience centers strategically located in key markets in the United States and Canada. Lion currently has 12 experience centers
strategically located in key markets.
Our head and registered office is located at 921,
chemin de la Rivière du Nord, Saint-Jerome (Quebec), Canada, J7Y 5G2. Our company website is https://thelionelectric.com/en. Information
on or accessible through our Internet website is not a part of this reoffer prospectus.
When used in this reoffer prospectus, the terms
the “Company,” “Lion,” “issuer,” “we,” “our,” and “us”
refer to The Lion Electric Company and its consolidated subsidiaries, unless otherwise specified.
RISK FACTORS
You should carefully consider the specific risks
set forth under the caption “Risk Factors” in any of our filings with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), incorporated by reference
in this prospectus, before making an investment decision. For more information, see “Where You Can Find More Information.”
OFFER STATISTICS AND EXPECTED TIMETABLE
The Selling Shareholders may sell from time to
time pursuant to this prospectus (as may be detailed in prospectus supplements) up to 385,717 Shares. The actual per Share price that
the Selling Shareholders will offer pursuant hereto will depend on a number of factors that may be relevant as of the time of offer. See
“Plan of Distribution” below.
FORWARD-LOOKING STATEMENTS
This prospectus contains or incorporates
forward-looking statements within the meaning of Section 27A of the U.S. Securities Act of 1933, as amended (the
“Securities Act”) and Section 21E of the Exchange Act. These forward-looking statements are
management’s beliefs and assumptions. In addition, other written or oral statements that constitute forward-looking statements
are based on current expectations, estimates and projections about the industry and markets in which we operate and statements may
be made by or on our behalf. Words such as “should,” “could,” “may,” “expect,”
“anticipate,” “intend,” “plan,” “believe,” “seek,”
“estimate,” variations of such words and similar expressions are intended to identify such forward-looking statements.
These statements are not guarantees of future performance and involve certain risks, uncertainties and assumptions that are
difficult to predict. There are a number of important factors that could cause our actual results to differ materially from those
indicated by such forward-looking statements.
We describe material risks, uncertainties and
assumptions that could affect our business, including our financial condition and results of operations, under “Risk Factors”
and may update our descriptions of such risks, uncertainties and assumptions in any prospectus supplement. We base our forward-looking
statements on our management’s beliefs and assumptions based on information available to our management at the time the statements
are made. We caution you that actual outcomes and results may differ materially from what is expressed, implied or forecast by our forward-looking
statements. Accordingly, you should be careful about relying on any forward-looking statements. Except as required under the federal securities
laws, the rules and regulations of the Commission, stock exchange rules, and other applicable laws, regulations and rules, we do
not have any intention or obligation to update publicly any forward-looking statements after the distribution of this prospectus, whether
as a result of new information, future events, changes in assumptions, or otherwise.
USE OF PROCEEDS
The proceeds from the sale of the Shares offered
pursuant to this reoffer prospectus are solely for the account of the Selling Shareholders. We will not receive any of the proceeds from
any sale of Shares by the Selling Shareholders.
SELLING SHAREHOLDERS
The Shares being registered by this reoffer prospectus
consists of 385,717 Shares that may be issued to the individuals listed below (the “Selling Shareholders”) pursuant
to the grant of options, deferred share units, performance share units, and/or restricted share units under the Plans, subject to exercise,
vesting and settlement.
We are registering these Shares to permit the
Selling Shareholders to resell these Shares when each deems appropriate. The Selling Shareholders may resell all, a portion, or none of
the Shares, at any time and from time to time. The Selling Shareholders may also sell, transfer or otherwise dispose of some or all of
the Shares in transactions exempt from the registration requirements of the Securities Act of 1933, as amended (the “Securities
Act”). We do not know when or in what amounts the Selling Shareholders may offer any Shares for sale under this reoffer prospectus.
This reoffer prospectus does not constitute a commitment by the Selling Shareholders to sell all or any of the stated number of their
Shares, and the actual number of Shares offered and sold will be determined from time to time by each Selling Shareholder at his or her
sole discretion. Each of the Selling Shareholders has voting and investment control power over his or her Shares. Although a person’s
name is included in the table below, neither that person nor we are making an admission that the named person is our “affiliate.”
The following table sets forth: (i) the name
of each Selling Shareholder; (ii) the number and percentage of our Common Shares that the Selling Shareholder beneficially owned
as of March 4, 2024 prior to the offering for resale of the Shares under this reoffer prospectus; (iii) the number of Shares
that may be offered for resale for the account of the Selling Shareholder under this reoffer prospectus; and (iv) the number and
percentage of Common Shares to be beneficially owned by the Selling Shareholder after the offering of the resale shares (assuming all
of the offered resale Shares are sold by such Selling Shareholder (whether vested or unvested)). The percentages appearing in the column
entitled “Number of Shares Beneficially Owned After the Offering” are based on 226,184,932 Common Shares outstanding as of
January 1, 2024. Common Shares that may be acquired by the Selling Shareholder pursuant to previous grants under the Plans, whether
vested or unvested, that constitute Shares are deemed to be outstanding and to be beneficially owned by the Selling Shareholder holding
such Shares for the purposes of computing the percentage ownership of such Selling Shareholder but are not treated as outstanding for
the purposes of computing the percentage ownership of each of the other Selling Shareholders. The actual number of Shares beneficially
owned prior to and after the offering is subject to adjustment and could be materially less or more than the estimated amount indicated
depending upon factors, which we cannot predict at this time.
The Selling Shareholders are not required to
sell any Shares and there is no assurance that any of the Selling Shareholders will sell any or all of the Shares covered by this reoffer
prospectus. We are not aware of any agreements, arrangements or understandings with respect to the sale or other disposition of any of
the Shares covered hereby.
| Name of Selling Shareholder | |
Number of Shares
Beneficially
Owned Prior to
Offering(1) | | |
Number of
Shares
Being
Registered
for | | |
Number of Shares
Beneficially
Owned After the
Offering(3) | |
| | |
Number | | |
Percent | | |
Resale(2) | | |
Number | | |
Percent | |
| Sheila Colleen Bair (4) | |
| 38,841 | | |
| 0 | % | |
| 30,967 | | |
| 7,874 | | |
| 0 | % |
| Nathan Baguio (5) | |
| 336,567 | | |
| 0 | % | |
| 291,446 | | |
| 45,121 | | |
| 0 | % |
| Dominik Beckman(6) | |
| 10,083 | | |
| 0 | % | |
| 10,083 | | |
| 0 | | |
| 0 | % |
| Eric Pansegrau (7) | |
| 15,928 | | |
| 0 | % | |
| 15,928 | | |
| 0 | | |
| 0 | % |
| Suzanne Schwartz (8) | |
| 6,312 | | |
| 0 | % | |
| 6,312 | | |
| 0 | | |
| 0 | % |
| Rod Copes (9) | |
| 30,981 | | |
| 0 | % | |
| 30,981 | | |
| 0 | | |
| 0 | % |
| (1) | In computing the number of shares of Common Shares beneficially owned by a person and the percentage ownership
of that person, we deemed to be outstanding all shares of Common Shares subject to options, deferred share units, performance share units,
and restricted share units or other derivative securities held by that person that are exercisable, vested or convertible as of March 4,
2024 or that will become exercisable, vested or convertible within 60 days after March 4, 2024, but we did not deem these shares
outstanding for the purpose of computing the percentage ownership of any other person. |
| (2) | The numbers of Common Shares reflect all Common Shares acquired or issuable to a person pursuant to applicable
grants previously made under the Plans irrespective of whether such grants are exercisable, vested or convertible as of March 4,
2024 or will become exercisable, vested or convertible within 60 days after March 4, 2024. |
| (3) | In computing the number of Common Shares beneficially owned by a person and the percentage ownership of
that person following the offering, we deemed to be outstanding all Common Shares then subject to options, deferred share units, performance
share units, and restricted share units or other derivative securities held by that person that are vested, exercisable or convertible
as of March 4, 2024 or that would become vested, exercisable or convertible within 60 days after March 4, 2024, but we did not
deem these Common Shares outstanding for the purpose of computing the percentage ownership of any other person. We further
presumed that the person sold all Shares eligible to be resold in this offering irrespective any applicable vesting, exercisability or
conversion limitations, but retained ownership of all other Common Shares beneficially owned as of March 4, 2024. |
| (4) | Sheila Colleen Bair’s beneficial ownership includes (i) 3,937 Common Shares held of record
as of March 4, 2024, (ii) 30,967 options to purchase Common Shares, which have vested as of March 4, 2024, and (iii) 3,937
Common Shares purchase warrants expiring December 15, 2027. |
| (5) | Nathan Baguio’s beneficial ownership includes (i) 45,121 Common Shares held of record as of
March 4, 2024, and (ii) 291,446 options to purchase Common Shares, which have vested or will vest within 60 days of March 4,
2024. |
| (6) | Dominik Beckman’s beneficial ownership 10,083 options to purchase Common Shares, which have vested
or will vest within 60 days of March 4, 2024 |
| (7) | Eric Pansegrau’s beneficial ownership includes 15,928 options to purchase Common Shares, which have
vested or will vest within 60 days of March 4, 2024. |
| (8) | Suzanne Schwartz’s beneficial ownership includes 6,312 options to purchase Common Shares, which
have vested or will vest within 60 days of March 4, 2024. |
| (9) | Rod Cope’s beneficial ownership includes 30,981 Common Shares held of record by Copes &
Copes Company, for which Rod Cope exercises voting and dispositive power. |
PLAN OF DISTRIBUTION
The purpose of this reoffer prospectus is to allow
the Selling Shareholders to offer for sale and sell all or a portion of each individual’s Shares. The Selling Shareholders may sell
the Common Shares registered pursuant to this reoffer prospectus directly to purchasers or through broker-dealers or agents, who may receive
compensation in the form of discounts, concessions or commissions from the Selling Shareholder or the purchasers. These commissions as
to any particular broker-dealer or agent may be in excess of those customary in the types of transactions involved. Neither we nor the
Selling Shareholders can presently estimate the amount of this compensation.
The Common Shares offered under this reoffer prospectus
may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing
market prices, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected in transactions,
which may involve block transactions, on any national securities exchange on which the Common Shares may be then-listed.
The aggregate proceeds to each Selling Shareholder
from the sale of the Shares will be the purchase price of the Common Shares less discounts and commissions, if any. The Selling Shareholders
reserve the right to accept and, together with his, her or its agents from time to time, to reject, in whole or in part, any proposed
purchase of the Shares to be made directly or through agents. We will not receive any of the proceeds from a sale of the Shares by the
Selling Shareholders.
The Selling Shareholders and any broker-dealers
or agents that participate in the sale of the Shares may be deemed to be “underwriters” under the Securities Act. Any discounts,
commissions, concessions or profit they earn on any resale of the Shares may be underwriting discounts and commissions under the Securities
Act. If a Selling Shareholder is an “underwriter” under the Securities Act, the Selling Shareholder will be subject to the
prospectus delivery requirements of the Securities Act.
Any securities covered by this reoffer prospectus
which qualify for sale pursuant to Rule 144 of the Securities Act may be sold under Rule 144 of the Securities Act rather than
pursuant to this reoffer prospectus.
There can be no assurance that the Selling Shareholders
will sell any or all of the securities offered by them hereby.
LEGAL MATTERS
The validity of the Shares being offered by this
prospectus has been passed upon by Stikeman Elliott LLP, counsel to Lion as to Canadian law. We have been advised on U.S. securities matters
by Troutman Pepper Hamilton Sanders LLP.
EXPERTS
The consolidated financial statements of the Company
for the year ended December 31, 2023 were audited by Raymond Chabot Grant Thornton LLP / Raymond Chabot Grant Thornton S.E.N.C.R.L.,
independent registered public accounting firm. Such consolidated financial statements are incorporated herein by reference in reliance
upon such report given on the authority of such firm as experts in accounting and auditing.
INDEMNIFICATION
Insofar as indemnification by us for liabilities
arising under the Securities Act may be permitted to our directors, officers or persons controlling the Company pursuant to provisions
of our articles, or otherwise, we have 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 by such director, officer
or controlling person of us 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, we 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.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements
of the Exchange Act that are applicable to foreign private issuers. Accordingly, Lion is required to file or furnish reports and other
information with the SEC, including annual reports on Form 40-F and reports on Form 6-K. Our Commission filings, including the
complete registration statement of which this prospectus is a part, are available to the public from commercial document retrieval services
and also available at the Internet website maintained by the Commission at http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows us to “incorporate
by reference” into this prospectus the information we file with it, which means that we can disclose important information to you
by referring you to those documents. The information incorporated by reference is an important part of this prospectus, and information
that we file later with the Commission will automatically update and supersede this information. The following documents are incorporated
by reference into this reoffer prospectus:
All reports and other documents subsequently filed
by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement,
but 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 herein and to be a part hereof from the date of
the filing of such reports and documents.
We will provide without charge to any person (including
any beneficial owner) to whom this prospectus is delivered, upon oral or written request, a copy of any document incorporated by reference
in this prospectus but not delivered with the prospectus (except for exhibits to those documents unless a documents states that one of
its exhibits is incorporated into the document itself). Such request should be directed to:
The Lion Electric Company
921 chemin de la Rivière-du-Nord
Saint-Jérôme, Québec, J7Y
5G2
Canada
450-432-5466 ext. 171
Attn: Isabelle Adjahi
You should rely only on the information incorporated
by reference or provided in this prospectus or any prospectus supplement. We have not authorized anyone else to provide you with different
information. You should not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other
than the date on the front page of those documents.
Part I — Information Required in
the Section 10(a) Prospectus
| Item 1. | Plan Information. * |
| Item 2. | Registrant Information and Employee Plan Annual Information.* |
| * | 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 United States 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 following documents filed by The Lion Electric
Company (the “Company,” “Lion,” “we,” “us” or “our”)
with the Commission are incorporated herein by reference:
| (d) | All documents filed by the Registrant pursuant to Section 13(a)or 15(d) of the Exchange Act
subsequent to the date of this registration statement and prior to the filing of a post-effective amendment to this registration statement
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 commencing on the respective dates on
which such documents are filed. |
| Item 4. | Description of Securities. |
| | |
| | Not applicable. |
| Item 5. | Interests of Named Experts and Counsel. |
| | |
| | Not applicable. |
| Item 6. | Indemnification of Directors and Officers. |
Under the Business Corporations Act (Québec)
(the “QBCA”) and the Registrant’s bylaws, the Registrant must indemnify its current or former directors or officers
or another individual who acts or has acted at its request as a director or officer, or an individual acting in a similar capacity, of
another entity, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably
incurred by the individual in respect of any civil, criminal, administrative, investigative or other proceeding in which the individual
is involved because of his or her association with the Registrant or another entity. The QBCA also provides that the Registrant must advance
moneys to such individual for costs, charges and expenses incurred in connection with such a proceeding; provided that such individual
shall repay such payment if he or she does not fulfill the conditions described below.
Indemnification is prohibited under the QBCA unless
the individual:
| · | acted with honesty and loyalty in the Registrant’s interests, or in the interest of the other group
for which the individual acted as director or officer or in a similar capacity at the Registrant’s request; and |
| · | in the case of a proceeding that is enforced by a monetary penalty, the individual had reasonable grounds
for believing that his or her conduct was lawful. |
The QBCA and the Registrant’s bylaws authorize
the Registrant to purchase and maintain insurance for the benefit of each of its current or former directors or officers and each person
who acts or has acted at the Registrant’s request as a director, officer or an individual acting in a similar capacity of the Registrant,
or of any subsidiary of the Registrant.
In addition, the Registrant entered into separate
indemnity agreements with each of its directors and officers. These indemnity agreements, among other things, require the Registrant to
indemnify its 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 a director or officer, or any subsidiary of the
Registrant.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933, as amended (the “Securities Act”), may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the U.S. Securities
and Exchange Commission (the “Commission”) such indemnification is against public policy as expressed in the Act and
is therefore unenforceable.
| Item 7. | Exemption from Registration Claimed. |
Shares previously issued pursuant to awards granted
prior to the filing of this Registration Statement that constitute “restricted securities” were issued to directors, officers,
employees and consultants in non-public offerings in reliance upon Section 4(a)(2) of the Securities Act.
| Item 8. | Exhibits. |
| | |
| | An Exhibit Index appears on page 10 hereof
and is incorporated herein by reference. |
(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 set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the 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 the 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) 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 (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.
(h) 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.
EXHIBIT INDEX
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 Saint-Jérôme, Province of Québec, Canada, on March 4, 2024.
| |
THE
LION ELECTRIC COMPANY |
| |
|
| |
By: |
/s/ Marc Bedard |
| |
|
Name: Marc Bedard |
| |
|
Title: Chief Executive
Officer |
| |
|
(Principal Executive
Officer) |
POWERS OF ATTORNEY AND SIGNATURES
KNOW ALL MEN BY THESE PRESENTS, that each
person whose signature appears below hereby constitutes and appoints Marc Bedard and Richard Coulombe, and each of them, with full power
to act without the other, such person’s true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution,
for him and in his name and on his behalf as a director and/or officer of The Lion Electric Company to prepare, execute and deliver any
and all amendments, including post-effective amendments, and supplements to this registration statement on Form S-8, including any
amendment to this registration statement for the purpose of registering additional shares in accordance with General Instruction E to
Form S-8, and to file the same, with exhibits and schedules thereto, and other documents in connection therewith (including any necessary
amendments thereof), 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 necessary or desirable to be done in connection with the above-described matters,
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 their or his substitute or substitutes may lawfully do or cause to be done by virtue hereof. This Power
of Attorney may be executed in multiple counterparts, each of which shall be deemed an original, but which taken together shall constitute
one instrument.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed by the following persons in the capacities and on March 4, 2024.
| Signature |
|
Title |
| |
|
|
| /s/ Marc Bedard |
|
Founder, Chief Executive Officer & Director |
| Marc Bedard |
|
(principal executive officer) |
| |
|
|
| /s/ Richard Coulombe |
|
Chief Financial Officer |
| Richard Coulombe |
|
(principal financial officer) |
| |
|
|
| /s/ Latasha Akoma |
|
Director |
| Latasha Akoma |
|
|
| |
|
|
| /s/ Sheila Colleen Bair |
|
Director |
| Sheila Colleen Bair |
|
|
| |
|
|
| /s/ Dane L. Parker |
|
Director |
| Dane L. Parker |
|
|
| |
|
|
| /s/ Ann L. Payne |
|
Director |
| Ann L. Payne |
|
|
| |
|
|
| |
|
Director |
| Pierre-Olivier Perras |
|
|
| |
|
|
| /s/ Michel Ringuet |
|
Lead Director |
| Michel Ringuet |
|
|
| |
|
|
| |
|
Director |
| Lorenzo Roccia |
|
|
| |
|
|
| /s/ Pierre Wilkie |
|
Director |
| Pierre Wilkie |
|
|
| |
|
|
| /s/ Pierre Larochelle |
|
Director and Chairman of the Board |
| Pierre Larochelle |
|
|
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of
the Securities Act of 1933, as amended, the undersigned has signed this Form S-8, solely in its capacity as duly authorized representative
of the Lion Electric Company in the United States, on March 4, 2024.
| |
|
PUGLISI & ASSOCIATES |
| |
|
|
| |
By: |
/s/ Donald J. Puglisi |
| |
Name: |
Donald J. Puglisi |
| |
Title: |
Managing Director |
Exhibit 5.1
March 4, 2024
The Lion Electric Company
921 chemin de la Rivière-du-Nord
Saint-Jérôme (Québec)
J7Y 5G2
Ladies and Gentlemen:
We have acted as Canadian counsel to The Lion Electric Company (the
“Corporation”), a corporation governed by the Business Corporations Act (Québec), in connection with
the Corporation’s Registration Statement on Form S-8 (the “Registration Statement”) to which this opinion is
an exhibit, filed by the Corporation with the Securities and Exchange Commission on or about the date hereof relating to the registration,
under the Securities Act of 1933, as amended (the “Securities Act”), by the Corporation of up to an aggregate 22,618,493
common shares in the capital of the Corporation (the “Shares”) issuable under (A) The Lion Electric Company Omnibus
Incentive Plan, effective May 6, 2021 (the “Omnibus Plan”) or (B) The Lion Electric Company Second Amended and
Restated Stock Option Plan for Directors, Executive Officers, Employees and Consultants, effective as of May 6, 2021 (the “Legacy
Plan”, and, together with the Omnibus Plan, the “Plans”), including 385,717 common shares in the capital
of the Corporation that may be issued to the selling shareholders described in the Registration Statement pursuant to and in accordance
with the terms of options, deferred share units, performance share units, and/or restricted share units, as applicable, granted under
the Plans as of the date hereof.
In connection with the foregoing and for the purpose of the opinion
hereinafter expressed, we have examined the Registration Statement and the Plans, and have also examined originals or copies, certified
or otherwise identified to our satisfaction, of and relied upon the following documents (collectively, the “Corporate Documents”):
(i) a certificate of an officer of the Corporation dated the date hereof, with respect to the constating documents of the Corporation
and certain factual matters relating to the Corporation, the Plans and the Shares; (ii) the amended and restated articles of the Corporation;
(iii) the by-laws of the Corporation; and (iv) certified extracts of certain resolutions and other authorizing documents of the Corporation’s
directors and security holders. As to various questions of fact material to the opinion rendered herein and which were not independently
established, we have relied exclusively and without independent verification upon the Corporate Documents for purposes of providing the
opinion we have expressed below. We have not conducted any independent enquiries or investigations in respect of the opinion hereinafter
expressed.
Where our opinion below refers to the Shares being issued as “fully-paid
and non-assessable”, such opinion assumes that all required consideration (in whatever form) will have been paid or provided. No
opinion is expressed as to the adequacy of any consideration received.
Our opinion below is expressed only with respect to the laws of the
Province of Québec (the “Jurisdiction”) and of the laws of Canada applicable in this Jurisdiction. Any
reference to the laws of a Jurisdiction includes the laws of Canada that apply in the Jurisdiction. Our opinion is expressed with respect
to the laws of the Jurisdiction in effect on the date of this opinion. We have no responsibility or obligation to update this opinion,
take into account or inform any person of any changes in law, facts or other developments subsequent to this date that do or may affect
the opinion we express, or advise any person of any other change in any matter addressed in this opinion.
Based and relying upon the foregoing, and subject to the assumptions,
qualifications and limitations set forth in this opinion, we are of the opinion that the Shares have been duly and validly authorized
for issuance and, if and when issued in accordance with such authorization and the terms of the applicable Plan, will be validly issued
as fully paid and non-assessable.
This opinion is rendered solely in connection with the Registration
Statement and is expressed as of the date hereof. Our opinion is expressly limited to the matters set forth above and we render no opinion,
whether by implication or otherwise, as to any other matters relating to Company, the Registration Statement or the Shares. This opinion
may not be used or relied upon by you for any other purpose or used or relied upon by any other person.
We consent to the inclusion of this opinion as part of the Registration
Statement and consent to being named in the Registration Statement under the heading “Legal Matters”. In giving this consent,
we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules
promulgated thereunder.
Yours truly,
/s/ Stikeman Elliott LLP
Stikeman Elliott LLP
Exhibit 23.2
|
Consent of Independent
Registered Public Accounting Firm |
Raymond Chabot
Grant Thornton LLP
Suite 2000
National Bank Tower
600 De La Gauchetière Street West
Montréal, Quebec H3B 4L8
T 514-878-2691
|
| |
|
| |
Classification: Public |
We have issued our report dated February 28, 2024, with respect to
the consolidated financial statements included in the Annual Report of The Lion Electric Company on Form 40-F for the fiscal year ended
December 31, 2023, which is incorporated by reference in this Registration Statement.
We consent to the incorporation by reference in this Registration
Statement on Form S-8 being filed with the United States Securities and Exchange Commission of the aforementioned report.
Montreal, Canada
March 4, 2024
| |
|
|
| Member of Grant Thornton International Ltd |
|
rcgt.com |
Exhibit 107.1
Calculation of Filing Fee Tables
Form
S-8
(Form Type)
The
Lion Electric Company
(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 |
Maximum
Aggregate
Offering Price |
Fee Rate |
Amount of
Registration Fee |
| Equity |
Common Shares, no par value |
Rule 457(c) and (h) |
22,263,757(2) |
$1.71(3) |
$38,071,024 |
0.00014760 |
$5,619.28 |
| Equity |
Common Shares, no par value |
Rule 457(h) |
385,717(4) |
$1.44 (3) |
$555,432.48 |
0.00014760 |
$81.98 |
| |
|
|
|
|
|
|
|
| |
|
|
|
|
| Total Offering Amounts |
|
$38,626,456.48 |
|
$5,701.26 |
| Total Fee Offsets |
|
|
|
— |
| Net Fee Due |
|
|
|
$5,701.26 |
(1) Pursuant to Rule 416(a) under
the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement on Form S-8 (this “Registration
Statement”) also covers an indeterminate number of additional common shares, without par value (“Common Shares”), of
The Lion Electric Company that may become issuable under The Lion Electric Company Omnibus Incentive Plan (the “Omnibus Plan”)
and the Lion Electric Company legacy equity-based incentive plan (the “Legacy Plan” and, together with the Omnibus Plan, the
“Plans”) by reason of any share dividend, share split, recapitalization, or other similar transaction effected without the
receipt of consideration, which results in an increase in the number of outstanding Common Shares..
(2) Represents Common Shares that have been reserved for future issuance,
or that have been issued to the Selling Shareholders (as defined in this Registration Statement), under the Plans.
(3) Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(c) and (h) under the Securities Act on the basis of the average of the high and low market prices of the Common
Shares on the NYSE as of February 28, 2024.
(4) Represents Common Shares reserved for issuance upon exercise of
outstanding stock options under the Plans.
(5) Calculated solely for the purpose of determining the registration
fee pursuant to Rule 457(h)(1) of the Securities Act, based on the weighted average exercise price per share of the outstanding stock
options. The U.S. dollar amounts with respect to outstanding stock options were calculated based on the Bank of Canada noon rate of exchange
reported on February 28, 2024, which was C$1.00=US$0.7367.
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