UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
FORM S-8
 
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
 
Exactus, Inc.
(Exact name of registrant as specified in its charter)
 
Nevada
(State or other jurisdiction of
incorporation or organization)
 
27-1085858
(I.R.S. Employer Identification No.)
  4870 Sadler Road, Suite 300
Glen Allen, Virginia 23060
(Address of Principal Executive Offices)
 
  Exactus, Inc. 2018 Incentive Plan
Exactus, Inc. 2019 Equity Incentive Plan
(Full title of the plan)
 
Corporate Creations Network, Inc., 8275 South Eastern Ave., Ste. 200, Las Vegas, NV 89123
(Name and address of agent for service)
 
(804) 205-5036
(Telephone number, including area code, of agent for service)
 
CALCULATION OF REGISTRATION FEE
 
 
Title of Securities to be Registered(1)  
 
  Amount to be Registered  
 
 
  Proposed Maximum Offering Price Per Share(4)  
 
   Proposed Maximum Aggregate Offering Price(4)   
   Amount of Registration Fee   
Common Stock $0.0001 par value 2018 Incentive Plan  
  9,500,000(2) Shares  
  $0.0086 Per Share  
 $81,700 
   
Common Stock $0.0001 par value 2019 Incentive Plan  
  13,500,000(3) Shares  
  $0.0086 Per Share  
 $116,100 
   
Totals  
23,000,000 Shares  
$0.0086 Per Share  
 $197,800 
 $23.97 
 
(1)
This registration statement covers the common stock, and common stock issuable upon the exercise of options, issued under our plan titled “Exactus, Inc. 2018 Incentive Plan” and the “Exactus, Inc. 2019 Equity Incentive Plan.
 
(2)
This registration statement shall also cover an indeterminable number of additional shares of common stock which may become issuable under the Exactus, Inc. 2018 Incentive Plan by reason of any stock dividend, stock split, re-capitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the registrant’s outstanding shares of common stock.
 
(3)
This registration statement shall also cover an indeterminable number of additional shares of common stock which may become issuable under the Exactus, Inc. 2019 Equity Incentive Plan by reason of any stock dividend, stock split, re-capitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the registrant’s outstanding shares of common stock. Further, this registration statement is intended to cover an indeterminable number of additional shares of common stock which may become issuable under the Exactus, Inc. 2019 Equity Incentive Plan such that the total amount of shares covered with regard to such Plan will be equal to exceed fifteen percent (15%) of the total of: (a) the issued and outstanding shares of the registrant’s common stock, and (b) all shares common stock issuable upon conversion or exercise of any outstanding securities of the registrant which are convertible or exercisable into shares of common stock under the terms thereof, as determined on the date such Plan was adopted by the Corporation’s Board of Directors, and as adjusted effective on the first day of each of the registrant’s fiscal quarters.
 
(4)
Estimated solely for the purpose of calculating the registration fee. Pursuant to Rule 457(c) under the Securities Act, the proposed maximum offering price per share and the proposed maximum aggregate offering price have been determined on the basis of the average of the bid and asked price as of a specified date within five business days prior to the date of filing the registration statement.
________________
 
Copies to:
Joe Laxague, Esq.
 Laxague Law, Inc.
1 East Liberty, Suite 600
Reno, Nevada 89501
(775) 234-5221
 
 
 
 
 
EXPLANATORY NOTE
 
In August of 2018, the Board of Directors of Exactus, Inc. (the “Company”) approved the adoption of the Exactus, Inc. 2018 Incentive Plan (the “2018 Plan”). The purpose of this Registration Statement on Form S-8 is to register with the Securities and Exchange Commission (the “Commission”) 9,500,000 shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), which may be issued by the Company upon the exercise of options granted, or other awards made, pursuant to the terms of the 2018 Plan, together with an indeterminable number of additional shares of common stock which may become issuable under the 2018 Plan by reason of any stock dividend, stock split, re-capitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the registrant’s outstanding shares of common stock.
 
In December of 2018, the Board of Directors of the Company approved the adoption of the Exactus, Inc. 2019 Equity Incentive Plan (the “2019 Plan”). The further purpose of this Registration Statement on Form S-8 is to register with the Securities and Exchange Commission (the “Commission”) 13,500,000 shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), which may be issued by the Company upon the exercise of options granted, or other awards made, pursuant to the terms of the 2019 Plan, together with indeterminable number of additional shares of common stock which may become issuable under the Exactus, Inc. 2019 Equity Incentive Plan such that the total amount of shares covered with regard to such Plan will be equal to exceed fifteen percent (15%) of the total of: (a) the issued and outstanding shares of the registrant’s common stock, and (b) all shares common stock issuable upon conversion or exercise of any outstanding securities of the registrant which are convertible or exercisable into shares of common stock under the terms thereof, as determined on the date such Plan was adopted by the Corporation’s Board of Directors, and as adjusted effective on the first day of each of the registrant’s fiscal quarters.
 
The reports most recently filed by the Company with the Commission are listed below in Part II, Item 3.
 
PART I
 
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
 
Item 1. 
Plan Information.*  
 
Item 2. 
Registrant Information and Employee Plan Annual Information.*
 
*            
The documents containing the information concerning the Plan specified in Part I of the instructions to Registration Statement on Form S-8 have been or will be sent or given to the participants in the Plan, as specified by Rule 428(b)(1) under the Securities Act of 1933 (the “Securities Act”). In accordance with the Note to Part I of the instructions to Registration Statement on Form S-8, such documents are not filed with the Securities and Exchange 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 hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
 
 
 
 
 
PART II
 
Item 3. 
Incorporation of Documents by Reference.
 
The following documents filed by the Company with the Securities and Exchange Commission are incorporated by reference into this Registration Statement:
 
(1)
Annual Report on Form 10-K for the year ended December 31, 2017, filed with the Commission on April 2, 2018;
 
(2)
Quarterly Reports on Form 10-Q for the periods ended March 31, 2018, June 30, 2018, and September 30, 2018 filed with the Commission on May 21, 2018, August 20, 2018, and November 14, 2018, respectively;
 
(3)
Current Reports on Form 8-K, filed with the Commission on July 6, 2018, July 20, 2018, September 5, 2018, September 7, 2018, September 14, 2018, October 12, 2018, November 7, 2018, and December 21, 2018, respectively; and
 
(4)
Schedule 14C filed with the Commission on September 14, 2018.
 
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 prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which de-registers 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 an Incorporated Document 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 Incorporated Document 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 Named Experts and Counsel.
 
No expert or counsel named in this prospectus as having prepared or certified any part of it or as having given an opinion upon the validity of the securities being registered or upon other legal matters in connection with the registration or offering of the common stock was employed on a contingency basis, or had, or is to receive, in connection with the offering, a substantial interest, direct or indirect, in the Company or any of its parents or subsidiaries. Nor was any such person connected with the Company or any of its parents or subsidiaries as a promoter, managing or principal underwriter, voting trustee, director, officer, or employee.
 
 
 
 
 
Item 6. 
Indemnification of Directors and Officers.
 
Our officers and directors are indemnified as provided by the Nevada Revised Statutes and our articles of incorporation and our bylaws.
 
Pursuant to our articles of incorporation and our bylaws, we may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, (other than an action by or in the right of us) by reason of the fact that he is or was a director, officer, employee, fiduciary or agent of the company or is or was serving at the request of us as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust, or other enterprise, against expenses (including attorney fees), judgments, fines, and amounts paid in settlement actually and reasonably believed to be in our best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, or conviction or upon a pleas of nolo contenders or its equivalent shall not of itself create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in our best interests and, with respect to any criminal action or proceeding, had reasonable cause to believe his conduct was unlawful.
 
Our articles of incorporation and bylaws also provide that we may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of our company or procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee, or agent of our company or is or was serving at our request as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorney fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in our best interests: but no indemnification shall be made in respect to any claim, issue, or matter as to which such person has been adjudged to be liable for negligence or misconduct in the performance of his duty to us unless and only to the extent that the court in which such action or suit was brought determines upon application that, despite the adjudication of liability, but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnification for such expenses which such court deems proper.
 
To the extent that a director, officer, employee, fiduciary or agent of a corporation has been successful on the merits in defense of any action, suit, or proceeding referred to in the preceding two paragraphs or in defense of any claim, issue, or matter therein, he shall be indemnified against expenses (including attorney fees) actually and reasonably incurred by him in connection therewith.
 
The indemnification provided by the provisions described in this section shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under our articles of incorporation, the bylaws, agreements, vote of the shareholders or disinterested directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs and personal representatives of such a person.
 
Item 7. 
Exemption from Registration Claimed.
 
Not applicable.
 
Item 8. 
Exhibits.
 
Exhibit
Number
 
Description
Exactus, Inc. 2018 Incentive Plan
Exactus, Inc. 2019 Equity Incentive Plan
Opinion of Laxague Law, Inc. regarding validity of securities with consent to use
Consent of RBSM LLP, Independent Registered Public Accounting Firm
Power of Attorney (included on the signature page hereof)
 
 
 
 
 
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 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 Commission pursuant to Rule 424(b) of the Securities Act if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; or
 
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
 
provided, however, that paragraphs (i) and (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.
 
(4) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
 
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
 
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
 
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
 
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
 
 
 
 
 
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 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.
 
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 Nevada Revised Statutes, the Articles of Incorporation of the registrant, the Bylaws of the registrant, indemnification agreements entered into between the registrant and its officers and directors 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 in successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered hereunder, 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 of 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
 
In accordance with 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 authorized this registration statement to be signed on its behalf by the undersigned, in Glen Allen, Virginia, on December 26, 2018.
 
 
Exactus, Inc.
 
By: /s/ Philip J. Young
Philip J. Young, Chief Executive Officer and Director
 
By: /s/ Timothy Ryan
Timothy Ryan, Executive Vice President and Director
 
By: /s/ Kelley A. Wendt
Kelley A. Wendt, Chief Financial Officer
 
 
POWER OF ATTORNEY
 
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Philip J. Young as his true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for him and in his 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 U.S. Securities and Exchange Commission, granting unto 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 connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or any of them, or of their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
 
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities stated on December 26, 2018.
 
 
By: /s/ Philip J. Young
Philip J. Young, Chief Executive Officer and Director
 
By: /s/ Timothy Ryan
Timothy Ryan, Executive Vice President and Director
 
By: /s/ Kelley A. Wendt
Kelley A. Wendt, Chief Financial Officer