As filed with the Securities and Exchange Commission on March 10, 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
TRITIUM DCFC LIMITED
(Exact name of Registrant as specified in its charter)
| Australia | Not applicable | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) | |
48 Miller Street Murarrie, QLD 4172 Australia +61 (07) 3147 8500 | 4172 | |
| (Address of Principal Executive Offices) | (Zip Code) | |
Tritium DCFC Limited 2023 Employee Stock Purchase Plan
(Full Title of the Plan)
Cogency Global Inc.
122 East 42nd Street, 18th Floor
New York, NY 10168
(800) 221-0102
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Christopher Lueking Ryan Maierson Roderick Branch Latham & Watkins LLP 330 North Wabash Avenue, Suite 2800 Chicago, IL 60611 (312)-876-7700 | Alexandra Feros Corrs Chambers Westgarth 42, 111 Eagle Street Brisbane QLD 4000 Australia Tel: +61 (7) 3228 9789 |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☒ | 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 7(a)(2)(B) of the Securities Act. ☐
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 is not being filed with or included in this Form S-8 (by incorporation by reference or otherwise) in accordance with the rules and regulations of the Securities and Exchange Commission (the “SEC”).
Item 1. Plan Information.
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
In this Registration Statement, Tritium DCFC Limited is sometimes referred to as “Registrant,” “we,” “us” or “our.”
Item 3. Incorporation of Documents by Reference.
The SEC allows us to incorporate by reference the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this Registration Statement, and later information filed with the SEC will update and supersede this information. We hereby incorporate by reference into this Registration Statement the following documents previously filed with the SEC:
| (a) | the Registrant annual report on Form 20-F, filed with the SEC on September 22, 2022 (File No. 001-41226) which contains the Registrant’s audited financial statements for the fiscal year for which such statements have been filed; |
| (b) | all other reports filed by us pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Annual Report on Form 20-F referred to in (a) above; |
| (c) | the description of the Registrant’s Ordinary Shares contained in the Registrant’s registration statement on Form 8-A (File No. 001-41226), filed by the Registrant with the SEC under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on January 13, 2022 including any amendments or reports filed for the purpose of updating such description; and |
| (d) | all documents that we subsequently file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective amendment to the registration statement that indicates that all of the Ordinary Shares offered have been sold or that deregisters all of such shares then remaining unsold. |
Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such earlier 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.
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Australian law. Australian law provides that a company or a related body corporate of the company may provide for indemnification of a person as an officer or auditor of the company, except to the extent of any of the following liabilities incurred as an officer or auditor of the company:
| • | a liability owed to the company or a related body corporate of the company; |
| • | a liability for a pecuniary penalty order made under section 1317G or a compensation order under section 961M, 1317H, 1317HA, 1317HB, 1317HC or 1317HE of the Australian Corporations Act 2001 (Cth) (the “Corporations Act”); or |
| • | a liability that is owed to someone other than the company or a related body corporate of the company and did not arise out of conduct in good faith. |
Australian law provides that a company or related body corporate of the company must not indemnify a person against legal costs incurred in defending an action for a liability incurred as an officer or auditor of the company if the costs are incurred:
| • | in defending or resisting proceedings in which the officer or director is found to have a liability for which they cannot be indemnified as set out above; |
| • | in defending or resisting criminal proceedings in which the person is found guilty; |
| • | in defending or resisting proceedings brought by the ASIC or a liquidator for a court order if the grounds for making the order are found by the court to have been established (except costs incurred in responding to actions taken by the ASIC or a liquidator as part of an investigation before commencing proceedings for the court order); or |
| • | in connection with proceedings for relief to the officer or a director under the Corporations Act, in which the court denies the relief. |
Constitution. Registrant’s Constitution provides, to the extent permitted by and subject to any applicable law, for the indemnification of each director, secretary and officer of Registrant, or a subsidiary of Registrant against any liability incurred by that person in such capacity, and for any legal costs incurred in defending or resisting (or otherwise in connection with) proceedings, whether civil or criminal or of an administrative or investigatory nature, in which the person becomes involved because of that capacity.
SEC Position. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling Registrant pursuant to the foregoing provisions, Registrant has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
| Exhibit Number | Incorporated by Reference | |||||||||||||||||
Exhibit Description | Form | Date | Number | Filed Herewith | ||||||||||||||
| 4.1 | Constitution of Tritium DCFC Limited | F-1 | 7/8/2022 | 3.1 | ||||||||||||||
| 4.2 | Specimen Ordinary Share Certificate | F-1 | 2/11/2022 | 4.4 | ||||||||||||||
| 5.1 | Opinion of Corrs Chambers Westgarth | X | ||||||||||||||||
| 23.1 | Consent of PricewaterhouseCoopers, independent registered public accounting firm | X | ||||||||||||||||
| 23.2 | Consent of Corrs Chambers Westgarth (contained in Exhibit 5.1) | X | ||||||||||||||||
| 24.1 | Power of Attorney (included on the signature page of the Registration Statement) | X | ||||||||||||||||
| 99.1 | Tritium DCFC Limited Amended and Restated 2023 Employee Stock Purchase Plan | X | ||||||||||||||||
| 107 | Filing Fee Table | X | ||||||||||||||||
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Item 9. Undertakings.
(a) The 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent 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 registration statement is on Form S-8, 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 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.
| (2) | That, for the purpose of determining any liability under the Securities Act of 1933, 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 Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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 of 1933 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.
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Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Brisbane, State of Queensland, Australia, on this 10th day of March, 2023.
TRITIUM DCFC LIMITED | ||
| By: | /s/ Jane Hunter | |
| Name: Jane Hunter | ||
| Title: Chief Executive Officer | ||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint each of Jane Hunter and Rob Topol, with full power of substitution and full power to act without the other, as his or her true and lawful attorney-in-fact and agent to act for him or her in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file this registration statement, with all exhibits thereto, and other documents in connection therewith, 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 and thing requisite and necessary to be done in order to effectuate the same as fully, to all intents and purposes, as they or 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, 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 by the following persons in the capacities and on the date indicated.
NAME | POSITION | DATE | ||
/s/ Jane Hunter Jane Hunter | Chief Executive Officer and Executive Director (Principal Executive Officer) | March 10, 2023 | ||
/s/ Rob Topol Rob Topol | Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | March 10, 2023 | ||
/s/ Robert Tichio Robert Tichio | Non-Executive Director and Chairman | March 10, 2023 | ||
/s/ Trevor St. Baker Trevor St. Baker | Non-Executive Director | March 10, 2023 | ||
/s/ Kenneth Braithwaite Kenneth Braithwaite | Non-Executive Director | March 10, 2023 | ||
/s/ David Finn David Finn | Non-Executive Director | March 10, 2023 | ||
/s/ Edward Hightower Edward Hightower | Non-Executive Director | March 10, 2023 | ||
/s/ Adam Walker Adam Walker | Non-Executive Director | March 10, 2023 | ||
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of the Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United States of Tritium DCFC Limited. has signed this registration statement on March 10, 2023.
| By: | /s/ Colleen A. De Vries | |
Name: | Colleen A. De Vries | |
Title: | Senior Vice President on behalf of Cogency Global Inc., Authorized Representative in the United States |
