As filed with the Securities and Exchange Commission on February 9, 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
ESS TECH, INC.
(Exact name of registrant as specified in its charter)
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| Delaware | | 98-1550150 |
(State or other jurisdiction of incorporation or organization) | | (I.R.S. Employer Identification No.) |
26440 SW Parkway Ave., Bldg. 83
Wilsonville, OR 97070
(Address of Principal Executive Offices, including zip code)
ESS Tech, Inc. 2021 Equity Incentive Plan
(Full title of the plan)
Eric P. Dresselhuys
Chief Executive Officer
26440 SW Parkway Ave., Bldg. 83
Wilsonville, OR 97070
(855) 423-9920
(Name, address and telephone number, including area code, of agent for service)
Copies to:
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Mark B. Baudler Christoph Luschin Alexandra Perry Wilson Sonsini Goodrich & Rosati, P.C. 650 Page Mill Road Palo Alto, California 94304 (650) 493-9300 | | Anthony Rabb Chief Financial Officer 26440 SW Parkway Ave., Bldg. 83 Wilsonville, Oregon 97070 (855) 423-9920 |
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.
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| Large accelerated filer | | ☐ | | Accelerated filer | | ☐ |
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| Non-accelerated filer | | ☒ | | Smaller reporting company | | ☒ |
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| | | | 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. ☐
EXPLANATORY STATEMENT
ESS Tech, Inc. (the “Registrant”) is filing this Registration Statement with the Securities and Exchange Commission (the “SEC”) to register additional securities of the same class as other securities for which a registration statement on Form S-8 relating to the same employee benefit plan is effective. The number of the Registrant’s common stock, par value $0.0001 per share (“Common Stock”), available for grant and issuance under the 2021 Equity Incentive Plan (the “2021 Plan”) is subject to an annual increase on the first day of each fiscal year beginning with fiscal year 2022, in an amount equal to the least of (i) 15,260,000 shares, (ii) five percent (5%) of the outstanding shares of Common Stock on the last day of the immediately preceding fiscal year or (iii) such number of shares of Common Stock determined by the 2021 Plan administrator. On January 1, 2024, the number of shares of the Registrant’s common stock available for grant and issuance under the 2021 Plan increased by 8,700,000 shares. This Registration Statement registers such additional shares of Common Stock.
In accordance with General Instruction E of Form S-8, this Registration Statement hereby incorporates by reference the contents of (i) the registration statement on Form S-8 filed with the SEC on December 15, 2021 (File No. 333-261649), (ii) the registration statement on Form S-8 filed with the SEC on March 4, 2022 (File No. 333-263281), and (iii) the registration statement on Form S-8 filed with the SEC on March 2, 2023 (File No. 333-270211), to the extent supplemented, amended or superseded by the information set forth herein. In accordance with the instructional note to Part I of Form S-8 promulgated by the SEC, the information specified by Part I of Form S-8 has been omitted from this Registration Statement. PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed with the SEC:
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| (1) | Our Annual Report on Form 10-K (File No. 001-39525) for the fiscal year ended December 31, 2022 filed with the SEC on March 2, 2023 (the “Annual Report”); |
| (2) | The information specifically incorporated by reference into the Annual Report from our definitive proxy statement on Schedule 14A filed with the SEC on April 7, 2023 (File No. 001-39525); |
| (3) | Our Quarterly Reports on Form 10-Q (File No. 001-39525) for the quarterly periods ended March 31, 2023 (as filed with the SEC on May 10, 2023), June 30, 2023 (as filed with the SEC on August 9, 2023), and September 30, 2023 (as filed with the SEC on November 14, 2023). |
| (4) | |
| (5) | The description of our Common Stock contained in our Registration Statement on Form 8-A filed with the SEC on October 8, 2021 pursuant to Section 12(b) of the Exchange Act, as updated by Exhibit 4.2 to the Annual Report, including any amendments or reports filed for the purpose of updating such description. |
All documents filed by the Registrant with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the SEC (including, without limitation, information furnished under Item 2.02 or Item 7.01 of Current Reports on Form 8-K and the exhibits related to such items furnished under Item 9.01) shall not be deemed incorporated by reference into this Registration Statement.
Any statement contained in this Registration Statement, 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 subsequently filed document which also is incorporated or 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 6. Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law (“DGCL”) allows a corporation to provide in its certificate of incorporation that a director or officer of the corporation will not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, except where the director or officer breached the duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit or, with respect to an officer, in any action by or in the right of the corporation. Our certificate of incorporation, as amended, provides for this limitation of liability.
Section 145 of the DGCL, provides, among other things, that a Delaware corporation may indemnify any person who was, is or is threatened to be made, 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 such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful. A Delaware corporation may indemnify any persons who were or are a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person is or was a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests, provided further that no indemnification is permitted without judicial approval if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses (including attorneys’ fees) which such officer or director has actually and reasonably incurred.
Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify such person under Section 145.
Our amended and restated bylaws provide that we must indemnify and advance expenses to our directors and officers to the full extent authorized by the DGCL.
We have entered into indemnification agreements with each of our directors and executive officers. Such agreements may require us, among other things, to advance expenses and otherwise indemnify our executive officers and directors against certain liabilities that may arise by reason of their status or service as executive officers or directors, to the fullest extent permitted by law.
The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, any provision of our certificate of incorporation, amended and restated bylaws, agreement, vote of stockholders or disinterested directors or otherwise. Notwithstanding the foregoing, we shall not be obligated to indemnify a director or officer in respect of a proceeding (or part thereof) instituted by such director or officer, unless such proceeding (or part thereof) has been authorized by the board of directors pursuant to the applicable procedure outlined in our amended and restated bylaws.
Section 174 of the DGCL provides, among other things, that a director, who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption, may be held jointly and severally liable for such actions. A director who was either absent when the unlawful actions were approved or dissented at the time may avoid liability by causing his or her dissent to such actions to be entered in the books
containing the minutes of the meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.
We currently maintain and expect to continue to maintain standard policies of insurance that provide coverage (1) to our directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act and (2) to us with respect to indemnification payments that we may make to such directors and officers.
These provisions may discourage stockholders from bringing a lawsuit against our directors for breach of their fiduciary duty. These provisions also may have the effect of reducing the likelihood of derivative litigation against directors and officers, even though such an action, if successful, might otherwise benefit us and our stockholders. Furthermore, a stockholder’s investment may be adversely affected to the extent we pay the costs of settlement and damage awards against officers and directors pursuant to these indemnification provisions.
We believe that these provisions, the insurance, and the indemnity agreements are necessary to attract and retain talented and experienced officers and directors.
Item 8. Exhibits.
The Registrant has filed the exhibits listed on the accompanying Exhibit Index of this Registration Statement.
EXHIBIT INDEX
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| | | | | Incorporated By Reference |
| Exhibit | | Description | | Form | | File No. | | Exhibit No. | | Filing Date |
| 4.1 | | | | 8-K | | 001-39525 | | 3.1 | | October 15, 2021 |
| 4.2 | | | | 8-K | | 001-39525 | | 3.1 | | May 22, 2023 |
| 4.3 | | | | 10-Q | | 001-39525 | | 3.2 | | November 3, 2022 |
| 5.1* | | | | | | | | | | |
| 23.1* | | | | | | | | | | |
| 23.2* | | Consent of Wilson Sonsini Goodrich & Rosati, P.C. (included in Exhibit 5.1 hereto) | | | | | | | | |
| 24.1* | | Power of Attorney (contained on signature page hereto) | | | | | | | | |
| 99.1† | | | | 10-K | | 001-39525 | | 10.9 | | March 2, 2023 |
| 107* | | | | | | | | | | |
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| * | Filed herewith. |
| † | Indicates management contract or compensatory plan or arrangement. |
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 Wilsonville, State of Oregon, on February 9, 2024.
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| ESS TECH, INC. |
| By: | | /s/ Eric P. Dresselhuys |
| | Eric P. Dresselhuys |
| | Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Eric P. Dresselhuys and Anthony Rabb, 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 them 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 on Form S-8, 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 they might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their 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.
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| Signature | | Title | | Date |
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| /s/ Eric P. Dresselhuys | | Chief Executive Officer and Director | | February 9, 2024 |
| Eric P. Dresselhuys | | (Principal Executive Officer) | | |
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| /s/ Anthony Rabb | | Chief Financial Officer | | February 9, 2024 |
| Anthony Rabb | | (Principal Financial and Accounting Officer) | | |
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| /s/ Harry Quarls | | Chairman of the Board and Director | | February 9, 2024 |
| Harry Quarls | | | | |
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| /s/ Michael Niggli | | Founding Chairman and Director | | February 9, 2024 |
| Michael Niggli | | | | |
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| /s/ Raffi Garabedian | | Director | | February 9, 2024 |
| Raffi Garabedian | | | | |
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| /s/ Kyle Teamey | | Director | | February 9, 2024 |
| Kyle Teamey | | | | |
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| /s/ Alexi Wellman | | Director | | February 9, 2024 |
| Alexi Wellman | | | | |
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Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
ESS Tech, Inc.
(Exact name of registrant as specified in its charter)
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| 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 Stock, $0.0001 par value per share, reserved for issuance pursuant to the ESS Tech, Inc. 2021 Equity Incentive Plan | Other | 8,700,000 (2) | $0.90 (3) | $7,830,000 | $147.60 per $1,000,000 | $1,155.71 |
| Total Offering Amounts | | $7,830,000 | | $1,155.71 |
| Total Fee Offsets | | | | - |
| Net Fee Due | | | | $1,155.71 |
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall cover any additional shares of the Registrant’s common stock that become issuable under the 2021 Equity Incentive Plan (the “2021 Plan”) by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding shares of common stock.
(2) Represents an automatic annual increase on January 1, 2024 of 8,700,000 shares of the Registrant’s common stock, which annual increase was determined by the compensation committee of the board of directors as provided for in the 2021 Plan.
(3) Estimated in accordance with Rule 457(c) and (h) of the Securities Act solely for the purpose of calculating the Registrant’s registration fee on the basis of $0.90 per share, which is the average of the high and low prices of common stock, as reported on the New York Stock Exchange, on February 6, 2024.
Exhibit 5.1
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| Wilson Sonsini Goodrich & Rosati
Professional Corporation 650 Page Mill Road
Palo Alto, California 94304-1050 o: 650.493.9300
f: 650.493.6811 |
February 9, 2024
ESS Tech, Inc.
26440 SW Parkway Ave., Bldg. 83
Wilsonville, OR 97070
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
This opinion is furnished to you in connection with the Registration Statement on Form S-8 (the “Registration Statement”) filed by ESS Tech, Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”), under the Securities Act of 1933, as amended (the “Securities Act”), covering the registration of 8,700,000 shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (“Common Stock”), reserved for issuance pursuant to future awards under the Company’s 2021 Equity Incentive Plan (the “2021 Plan).
We are acting as counsel for the Company in connection with the registration of the Securities. As such counsel, we have made such legal and factual examinations and inquiries as we have deemed necessary or advisable for the purpose of rendering the opinions and statements set forth below. In rendering the opinions and statements expressed below, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary for the purposes of rendering this opinion.
In addition, we have reviewed originals or copies of such corporate records of the Company, certificates of public officials, a certificate of an officer of the Company as to factual matters, and such other documents which we consider necessary or advisable for the purpose of rendering the opinions set forth below. We have not independently established the facts stated therein.
In our examination, we have assumed the genuineness of all signatures, the authenticity and completeness of all documents submitted to us as originals, the conformity with the originals of all documents submitted to us as copies, the authenticity of the originals of such documents and the legal competence of all signatories to such documents. We have also assumed the authority of such persons signing on behalf of the parties thereto other than the Company and the due authorization, execution and delivery of all documents by the parties thereto other than the Company. We have assumed that the certificates representing the Securities have been properly authenticated by the signature of an authorized officer of the Company’s transfer agent. We have also assumed the conformity of the documents filed with the Commission via the Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”), except for required EDGAR formatting changes, to physical copies submitted for our examination and the absence of any evidence extrinsic to the provisions of the written agreements between the parties that the parties intended a meaning contrary to that expressed by those provisions.
AUSTIN BEIJING BOSTON BOULDER BRUSSELS HONG KONG LONDON LOS ANGELES NEW YORK PALO ALTO
SALT LAKE CITY SAN DIEGO SAN FRANCISCO SEATTLE SHANGHAI WASHINGTON, DC WILMINGTON, DE
ESS Tech, Inc.
February 9, 2024
Page 2
We express no opinion as to any matter relating to the laws of any jurisdiction other than the federal laws of the United States of America and the General Corporation Law of the State of Delaware.
Based upon and subject to the foregoing qualifications, assumptions and limitations and the further limitations set out below, we are of the opinion that when the Shares have been issued pursuant to the applicable provisions of the 2021 Plan, and pursuant to the agreements that accompany the 2021 Plan, and in accordance with the Registration Statement, such Shares will be validly issued, fully paid and nonassessable.
This opinion is furnished to you in connection with the filing of the Registration Statement, and is not to be used, circulated, quoted or otherwise relied upon for any other purpose.
We hereby consent to the filing of this opinion as an exhibit to the above-referenced Registration Statement and to the use of our name wherever it appears in the Registration Statement, the Prospectus, any prospectus supplement, and in any amendment or supplement thereto. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Wilson Sonsini Goodrich & Rosati, P.C.
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2021 Equity Incentive Plan of ESS Tech, Inc. of our report dated March 1, 2023, with respect to the consolidated financial statements of ESS Tech, Inc., included in its Annual Report (Form 10-K) for the year ended December 31, 2022, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Portland, Oregon
February 9, 2024
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