S-8 1 tm2112104d1_s8.htm FORM S-8

As filed with the U.S. Securities and Exchange Commission on April 6, 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

APPHARVEST, INC.

(Exact name of registrant as specified in its charter)

Delaware		82-5042965
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

500 Appalachian Way
Morehead, Kentucky 40351
(Address of principal executive offices, including zip code)

AppHarvest, Inc. 2018 Equity Incentive Plan

AppHarvest, Inc. 2021 Equity Incentive Plan

AppHarvest, Inc. 2021 Employee Stock Purchase Plan

(Full titles of the plans)

Jonathan Webb

Chief Executive Officer

AppHarvest, Inc.

500 Appalachian Way

Morehead, Kentucky 40351

(606) 653-6100

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

Copies to:

Derek Lyons	Derek O. Colla
AppHarvest, Inc.	John T. McKenna
500 Appalachian Way	Cooley LLP
Morehead, Kentucky 40351	1299 Pennsylvania Avenue NW, Suite 700
(606) 653-6100	Washington, DC 20004
	(202) 842-7800

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 x	Smaller reporting company x
	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. ¨

CALCULATION OF REGISTRATION FEE


Title of Securities to be Registered	Amount to be Registered (1)			Proposed Maximum Offering Price per Share			Proposed Maximum Aggregate Offering Price		Amount of Registration Fee
Common Stock, par value $0.0001 per share
– 2021 Equity Incentive Plan		10,026,958	(2)(3)	$	17.22	(8)	$	172,664,217.00	$	18,838.00
– 2021 Employee Stock Purchase Plan		2,005,392	(4)(5)	$	14.64	(9)	$	29,358,939.00	$	3,204.00
– 2018 Equity Incentive Plan (Stock Option Awards)		2,846,170	(6)	$	0.33	(10)	$	939,237.00	$	103.00
– 2018 Equity Incentive Plan (Restricted Stock Unit Awards)		2,525,280	(7)	$	17.22	(8)	$	43,485,322.00	$	4,745.00
Total		17,403,800					$	246,447,715.00	$	26,888.00

(1)

Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of common stock that become issuable under the plans set forth herein by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected that results in an increase to the number of outstanding shares of Registrant’s common stock, as applicable.

(2)	Represents 10,026,958 shares reserved for future issuance pursuant to stock options and restricted stock unit awards under the Registrant’s 2021 Equity Incentive Plan (the “*2021 Plan*”).

(3)

The number of shares reserved for issuance under the 2021 Plan will automatically increase on January 1st each year, starting on January 1, 2022 and continuing through January 1, 2031, by the lesser of (a) 2.5% of the total number of shares of the Registrant’s common stock outstanding on December 31st of the immediately preceding fiscal year or (b) a lesser number determined by the Registrant’s board of directors prior to the applicable January 1st.

(4)	Represents 2,005,392 shares of common stock reserved for future issuance under the Registrant’s 2021 Employee Stock Purchase Plan (the “*2021 ESPP*”).

(5)

The number of shares reserved for issuance under the 2021 ESPP will automatically increase on January 1st each year, starting on January 1, 2022 and continuing through January 1, 2031, by the lesser of (a) 1% of the total number of shares of the Registrant’s capital stock outstanding on December 31st of the preceding calendar year, (b) 3,008,087 shares of the Registrant’s common stock or (c) a lesser number determined by the Registrant’s board of directors.

(6)	Represents shares of common stock issuable upon exercise of options outstanding under the Registrant's 2018 Equity Incentive Plan (the “*2018 Plan*”) as of the date of this Registration Statement.

(7)	Represents shares of common stock issuable upon settlement of restricted stock unit awards outstanding under the 2018 Plan as of the date of this Registration Statement.

(8)

Estimated pursuant to Rules 457(c) and 457(h) under the Securities Act, solely for the purposes of calculating the registration fee and based on the average of the high and low prices of the Registrant’s common stock as reported on the Nasdaq Global Select Market on March 30, 2021, which date is within five business days prior to the filing of this Registration Statement.

(9)

(10)	Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee. The offering price per share and the aggregate offering price are based upon $0.33 per share, which is the weighted-average exercise price for options outstanding under the 2018 Plan.

PART II

ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE

The following documents filed by AppHarvest, Inc. (the “Registrant”) with the Securities and Exchange Commission (the “SEC”) are incorporated by reference into this Registration Statement:

(a) The Registrant’s Annual Report on Form 10-K (File No. 001-39288) for the fiscal year ended December 31, 2020 filed with the SEC on January 29, 2021.

(b) The Registrant’s Current Reports on Form 8-K (File No. 001-39288) filed with the SEC on February 1, 2021, February 2, 2021 (as amended on March 2, 2021), March 2, 2021 and March 29, 2021.

(c) The Registrant’s Final Prospectus filed with the SEC on March 4, 2021 pursuant to Rule 424(b) under the Securities Act relating to the Registration Statement on Form S-1, as amended (File No. 333-252964).

(d) The description of the Registrant’s Common Stock which is contained in a Registration Statement on Form 8-A/A filed on May 14, 2020 (File No. 001-39288) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description.

(e) All other reports and documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items) on or after 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 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 of this Registration Statement from the date of the filing of such reports and documents. Any statement contained 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 subsequently filed document that also 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.

ITEM 4. DESCRIPTION OF SECURITIES

Not applicable.

ITEM 5. INTERESTS OF NAMES EXPERTS AND COUNSEL

GC&H Investments, LLC, which is an entity beneficially owned by current and former partners and associates of Cooley LLP, beneficially holds an aggregate of 95,817 shares of the Registrant’s common stock.

ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS

Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation's board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities, including reimbursement for expenses incurred, arising under the Securities Act. The Registrant's amended and restated certificate of incorporation permits indemnification of the Registrant's directors, officers, employees and other agents to the maximum extent permitted by the Delaware General Corporation Law, and the Registrant's amended and restated bylaws provide that the Registrant will indemnify its directors and executive officers and permit the Registrant to indemnify its other officers, employees and other agents, in each case to the maximum extent permitted by the Delaware General Corporation Law.

The Registrant has entered into indemnification agreements with each of its directors and executive officers. These agreements provide that the Registrant will indemnify each of its directors and such officers to the fullest extent permitted by law and its amended and restated certificate of incorporation and amended and restated bylaws.

The Registrant also maintains a general liability insurance policy, which will cover certain liabilities of its directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers.

ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED

Not applicable.

ITEM 8.

EXHIBITS

Exhibit		Incorporated by Reference
Number	Exhibit Description	Form	File No.	Exhibit	Filing Date
4.1*	Amended and Restated Certificate of Incorporation of AppHarvest, Inc.	Form 8-K	001-39288	3.1	February 2, 2021
4.2*	Amended and Restated Bylaws of AppHarvest, Inc.	Form 8-K	001-39288	3.2	February 2, 2021
4.3*	Specimen Common Stock Certificate.	Form S-4/A	333-249421	4.4	December 1, 2020
5.1	Opinion of Cooley LLP.
23.1	Consent of Ernst & Young LLP, independent registered public accounting firm.
23.2	Consent of Marcum LLP, independent registered public accounting firm.
23.3	Consent of Cooley LLP (included in Exhibit 5.1 hereto).
24.1	Power of Attorney (included on the signature page hereto).
99.1*	2018 Equity Incentive Plan, as amended.	Form 8-K/A	001-39288	10.1	March 2, 2021
99.2*	Forms of Notice of Grant, Stock Option Agreement, Notice of Exercise under the 2018 Equity Incentive Plan.	Form 8-K/A	001-39288	10.2	March 2, 2021
99.3*	Forms of Restricted Stock Unit Grant Notice and Restricted Stock Unit Agreement under the 2018 Equity Incentive Plan.	Form 8-K/A	001-39288	10.3	March 2, 2021
99.4*	2021 Equity Incentive Plan.	Form 8-K/A	001-39288	10.4	March 2, 2021
99.5*	Forms of Stock Option Grant Notice and Stock Option Agreement under the 2021 Equity Incentive Plan.	Form 8-K/A	001-39288	10.5	March 2, 2021
99.6*	Forms of Restricted Stock Unit Award Grant Notice and Restricted Stock Unit Award Agreement under the 2021 Equity Incentive Plan.	Form 8-K/A	001-39288	10.6	March 2, 2021
99.7*	2021 Employee Stock Purchase Plan.	Form 8-K/A	001-39288	10.7	March 2, 2021

* Previously Filed.

ITEM 9.

UNDERTAKINGS

The undersigned Registrant hereby undertakes:

(a)

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 Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement.

(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)(i) and (a)(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 Securities and Exchange 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.

(b)

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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c)

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.

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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

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 Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, 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 the City of Morehead, Kentucky, on this 6^th day of April, 2021.

	APPHARVEST, INC.

	By:	/s/ Jonathan Webb
		Jonathan Webb
		Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jonathan Webb and Loren Eggleton, and each one of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in their 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 the same, 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 connection therewith, 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 his or her substitute or substitutes, 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 by the following persons in the capacities and on the dates indicated.

Signature	Title	Date

/s/ Jonathan Webb	Chief Executive Officer, and Director	April 6, 2021
Jonathan Webb	(Principal Executive Officer)

/s/ Loren Eggleton	Chief Financial Officer	April 6, 2021
Loren Eggleton	(Principal Financial Officer and Principal Accounting Officer)

/s/ David Lee	President and Director	April 6, 2021
David Lee

/s/ Kiran Bhatraju	Director	April 6, 2021
Kiran Bhatraju

/s/ Gregory Couch	Director	April 6, 2021
Gregory Couch

/s/ Robert J. Laikin	Director	April 6, 2021
Robert J. Laikin

/s/ Anna Mason	Director	April 6, 2021
Anna Mason

/s/ Martha Stewart	Director	April 6, 2021
Martha Stewart

/s/ Jeffrey Ubben	Director	April 6, 2021
Jeffrey Ubben

/s/ J.D. Vance	Director	April 6, 2021
J.D. Vance