As filed with the Securities
and Exchange Commission on March 26, 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
HELIOGEN,
INC.
(Exact
name of registrant as specified in its charter)
Delaware |
|
84-4204953 |
(State or other jurisdiction
of incorporation) |
|
(I.R.S. Employer
Identification No.) |
130 W Union
St. |
|
|
Pasadena,
CA |
|
91103 |
(Address of principal executive
offices) |
|
(Zip Code) |
Heliogen,
Inc. 2021 Equity Incentive Plan
Heliogen,
Inc. 2021 Employee Stock Purchase Plan
(Full
title of the plans)
Debbie
Chen
General
Counsel
Heliogen,
Inc.
130 West Union Street
Pasadena, California 91103
Tel: 626-720-4530
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copy
to:
John-Paul
Motley
Cooley LLP
355
South Grand Avenue, 9th Floor
Los Angeles, California 90071
Tel: (213) 561-3204
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 |
☐ |
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Accelerated filer |
☐ |
Non-accelerated filer |
☒ |
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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
Note
Heliogen,
Inc. (the “Registrant”) is filing this registration statement on Form S-8 (the “Registration Statement”) with
the Securities and Exchange Commission (the “Commission”) to register the offering of an additional 297,315 shares of common
stock (the “Registered Shares”), par value $0.0001 per share (“Common Stock”), of the Registrant. The 297,315
shares of Common Stock being registered herein include (i) 237,852 shares of Common Stock issuable pursuant to the Heliogen, Inc. 2021
Equity Incentive Plan (the “2021 EIP”) and (ii) 59,463 shares of Common Stock issuable pursuant to the Heliogen, Inc. 2021
Employee Stock Purchase Plan (the “2021 ESPP”). These additional shares of Common Stock are securities of the same class
as other securities for which previous registration statements on Form S-8 (File Nos. 333-263346 and 333-269694) were filed with the
Commission on March 7, 2022 and February 10, 2023 (the “Prior Registration Statements”). Accordingly, the contents of the
Prior Registration Statements are incorporated by reference into this Registration Statement pursuant to General Instruction E of Form
S-8. The Registered Shares represent shares of Common Stock that have become reserved for issuance as a result of the operation of the
“evergreen” provisions in each of the 2021 EIP and 2021 ESPP, which provide that the total number of shares subject to such
plans may be increased on January 1 of each year pursuant to a specified formula.
In
accordance with the instructional note to Part I of Form S-8 as promulgated by the Commission, 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
following documents, which have been filed with the Commission, are incorporated by reference into this Registration Statement:
| (i) | the
Registrant’s Annual Report on Form 10-K for the year ended December 31, 2023, filed with the Commission on March 26, 2024; |
| (ii) | the Registrant’s Current Reports on Form 8-K filed with the Commission on January
12, 2024 (with respect to Item 5.02 and Exhibits 10.1 and 10.2 only), February
15, 2024 and March 25, 2024 (with respect to Item 5.02 and Exhibit 10.1 only); and |
| (iii) | the description of our
common stock and Warrants contained in our Registration Statement on Form 8-A, filed with the Commission on March 12, 2021, and the
description of the Series A Junior Participating Preferred Stock contained in our Registration Statement on Form 8-A filed
with the Commission on April 17, 2023, in each case as updated by Exhibit 4.4 to our Annual Report on Form
10-K for the year ended December 31, 2023 filed with the Commission on March 26, 2024, together with any amendment or
report filed with the Commission for the purpose of updating such description. |
In
addition, all documents filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Securities
Exchange Act of 1934, as amended (other than Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 of Form 8-K, including
any exhibits included with such information that are related to such items), after the date of this Registration Statement and prior
to the filing of a post-effective amendment that indicates that all securities offered hereby have been sold or that 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 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 Commission shall not be deemed incorporated by reference into this Registration Statement.
Any
statement contained in the documents incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed
to be modified, superseded, or replaced for purposes of this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference in this Registration Statement
modifies, supersedes, or replaces such statement. Any such statement so modified, superseded or replaced shall not be deemed, except
as so modified, superseded or replaced, to constitute a part of this Registration Statement.
Item 8. Exhibits.
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Incorporated by Reference |
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Exhibit
Number |
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Description |
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Schedule/
Form |
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File No. |
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Exhibit |
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Filing Date |
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4.1 |
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Second Amended and Restated Certificate of Incorporation of Heliogen, Inc. |
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Form 8-K |
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001-40209 |
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3.1 |
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January 6, 2022 |
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4.2 |
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Certificate of Amendment of Certificate of Incorporation of Heliogen, Inc., dated August 31, 2023. |
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Form 8-K |
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001-40209 |
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3.1 |
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August 31, 2023 |
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4.3 |
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Second Amended and Restated Bylaws of Heliogen, Inc. |
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Form 10-Q |
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001-40209 |
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3.2 |
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November 8, 2022 |
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4.4 |
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Certificate of Designations of Series A Junior Participating Preferred Stock of Heliogen, Inc. |
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Form 8-K |
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001-40209 |
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3.1 |
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April 17, 2023 |
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4.5 |
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Specimen Common Stock Certificate. |
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Form 8-K |
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007-40209 |
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4.1 |
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January 6, 2022 |
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4.6 |
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Rights Agreement, dated as of April 16, 2023, between Heliogen, Inc. and Continental Stock Transfer & Trust Company, as rights agent. |
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Form 8-K |
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001-40209 |
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4.1 |
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April 17, 2023 |
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5.1* |
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Opinion of Cooley LLP. |
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23.1* |
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Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm. |
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23.2* |
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Consent of Cooley LLP (contained in the opinion filed as Exhibit 5.1 hereto). |
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24.1* |
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Power of Attorney (included in the signature page of this Registration Statement). |
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99.1 |
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2021 Equity Incentive Plan. |
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Form 8-K |
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001-40209 |
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10.8 |
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January 6, 2022 |
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99.2 |
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Form of Stock Option Grant Package under 2021 Equity Incentive Plan. |
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Form 8-K |
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001-40209 |
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10.10 |
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January 6, 2022 |
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99.3 |
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Form of RSU Grant Package under 2021 Equity Incentive Plan. |
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Form 8-K |
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001-40209 |
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10.11 |
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January 6, 2022 |
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99.4 |
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2021 Employee Stock Purchase Plan. |
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Form 8-K |
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001-40209 |
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10.9 |
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January 6, 2022 |
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107* |
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Filing Fee Table |
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SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized in the City of Pasadena, State of California, on this 26th day
of March 2024.
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HELIOGEN, INC.
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By: |
/s/
Christiana Obiaya |
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Christiana Obiaya |
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Chief Executive Officer |
POWER
OF ATTORNEY
KNOW
ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Christiana Obiaya and Alan
Gahm, and each of them, as his or her true and lawful agents, proxies and attorneys-in-fact, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to
sign any and all amendments to this Registration Statement (including post-effective amendments), 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 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, as amended, this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
Signature |
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Title |
|
Date |
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/s/ Christiana
Obiaya |
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Chief Executive Officer,
Director |
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March 26, 2024 |
Christiana Obiaya |
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(Principal Executive Officer) |
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/s/ Alan Gahm |
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Interim Chief Financial
Officer |
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March 26, 2024 |
Alan Gahm |
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(Principal Financial Officer) |
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/s/ Wilda
Siu |
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Chief Accounting Officer |
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March 26, 2024 |
Wilda Siu |
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(Principal Accounting Officer) |
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/s/ Phyllis
W. Newhouse |
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Director |
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March 26, 2024 |
Phyllis W. Newhouse |
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/s/ Robert
Kavner |
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Director |
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March 26, 2024 |
Robert Kavner |
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/s/ Julie
M. Kane |
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Director |
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March 26, 2024 |
Julie M. Kane |
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/s/ Barbara
Burger |
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Director |
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March 26, 2024 |
Barbara Burger |
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/s/ Stacey
Abrams |
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Director |
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March 26, 2024 |
Stacey Abrams |
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/s/ Suntharesan
Padmanathan |
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Director |
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March 26, 2024 |
Suntharesan Padmanathan |
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/s/ Roger
Lazarus |
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Director |
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March 26, 2024 |
Roger Lazarus |
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II-3
Exhibit 5.1
![](https://www.sec.gov/Archives/edgar/data/1840292/000121390024026110/ex5-1_001.jpg)
March 26, 2024
John-Paul Motley
+1 213 561 3204
jpmotley@cooley.com
Heliogen, Inc.
130 W Union St.
Pasadena, CA 91103
Re: Heliogen, Inc. – Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Heliogen, Inc., a
Delaware corporation (the “Company”), in connection with the filing by the Company of a Registration Statement
on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”)
covering the offering of (a) up to 297,315 shares (the “Shares”) of the Company’s common stock, par value
$0.0001 per share (“Common Stock”), consisting of (1) 237,852 shares of Common Stock issuable pursuant to the
Company’s 2021 Equity Incentive Plan (the “2021 Plan”) and (2) 59,463 shares of Common Stock issuable
pursuant to the Company’s 2021 Employee Stock Purchase Plan (together with the 2021 Plan, the “Plans”),
and (b) the preferred share purchase rights associated with the Shares (the “2023 Rights”) as set forth in the
Rights Agreement (the “2023 Rights Plan”), dated as of April 16, 2023, between the Company and Continental Stock
Transfer & Trust Company, as rights agent (the “Rights Agent”).
In connection with this opinion, we have examined
and relied upon (a) the Registration Statement and related prospectuses, (b) the Company’s certificate of incorporation and bylaws,
each as currently in effect, (c) the Plans, (d) the 2023 Rights Plan and (e) such other records, documents, certificates, memoranda and
other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed
the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all
documents submitted to us as copies, the accuracy, completeness and authenticity of certificates of public officials and the due authorization,
execution and delivery of all documents by all persons other than the Company where authorization, execution and delivery are prerequisites
to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not
independently verified such matters.
Our opinion is expressed only with respect to
the General Corporation Law of the State of Delaware. We express no opinion to the extent that any other laws are applicable to the subject
matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.
Cooley LLP 355 South
Grand Avenue, Suite 900 Los Angeles, CA 90071
t: (213) 561-3250 f: (213) 561-3244 cooley.com
March 26, 2024
Page Two
With respect to our opinion concerning the 2023
Rights:
(i) Our
opinion does not address the determination a court of competent jurisdiction may make regarding whether the Company’s board of directors
(the “Board”) may be required to redeem or terminate, or take other action with respect to, the 2023 Rights
or 2023 Rights Plan in the future based on the facts and circumstances then existing.
(ii) Our
opinion assumes that the 2023 Rights Plan has been duly authorized, executed and delivered by the Rights Agent and that members of the
Board have acted in a manner consistent with their fiduciary duties as required under applicable law in adopting the 2023 Rights Plan.
With respect to the 2023 Rights associated with the Shares to be offered in the future under the Registration Statement, our opinion assumes
the 2023 Rights Plan has not been terminated by the Company or expired by its terms and the 2023 Rights have not expired or been redeemed
or exchanged by the Company, in each case, prior to the issuance of such Shares.
(iii) Our
opinion addresses corporate procedures in connection with the issuance of the 2023 Rights associated with shares of Common Stock of the
Company, and not any particular provision of the 2023 Rights or the 2023 Rights Plan. It should be understood that it is not settled whether
the invalidity of any particular provision of a rights agreement or purchase rights issued thereunder would invalidate such rights in
their entirety.
On the basis of the foregoing, and in reliance
thereon, and subject to the qualifications herein stated, we are of the opinion that the Shares and the associated 2023 Rights, when sold
and issued in accordance with the Plans, the Registration Statement and related prospectuses, will be validly issued, and the Shares will
be fully paid and nonassessable (except as to shares issued pursuant to deferred payment arrangements, which will be fully paid and nonassessable
when such deferred payments are made in full).
This opinion is limited to the matters expressly
set forth in this letter, and no opinion should be implied, or may be inferred, beyond the matters expressly stated. This opinion speaks
only as to law and facts in effect or existing as of the date hereof and we have no obligation or responsibility to update or supplement
this letter to reflect any facts or circumstances that may hereafter come to our attention or any changes in law that may hereafter occur.
We consent to the filing of this opinion as an
exhibit to the Registration Statement. 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 of 1933, as amended, or the rules and regulations of the Commission thereunder.
Sincerely,
Cooley LLP |
|
|
|
By: |
/s/ John-Paul Motley |
|
|
John-Paul Motley |
|
Cooley LLP 355 South
Grand Avenue, Suite 900 Los Angeles, CA 90071
t: (213) 561-3250 f: (213) 561-3244 cooley.com
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Heliogen, Inc., of our report dated March 26, 2024 relating to the financial statements, which appears in Heliogen
Inc.'s Annual Report on Form 10-K for the year ended December 31, 2023.
/s/ PricewaterhouseCoopers LLP
Los Angeles, California
March 26, 2024
Exhibit 107
CALCULATION OF
FILING FEE TABLE
Form S-8
(Form Type)
Heliogen, Inc.
(Exact name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
Security Type | |
Title
of Each Class of Securities
to be Registered | |
Fee
Calculation Rule | |
Amount to
be Registered(1) | | |
Proposed Maximum Offering
Price Per
Share | | |
Proposed Maximum Aggregate Offering
Price | | |
Fee
Rate | | |
Amount of Registration
Fee(7) | |
Equity | |
Heliogen,
Inc. 2021 Equity Incentive Plan
Common Stock, $0.0001 par value per share(2) | |
Rule
457(c) and (h) | |
| 237,852 | (3) | |
$ | 1.41 | (5) | |
$ | 335,371 | | |
| 0.00014760 | | |
$ | 49.51 | |
Equity | |
Heliogen,
Inc. 2021 Employee Stock Purchase Plan
Common Stock, $0.0001 par value per share(2) | |
Rule
457(c) and (h) | |
| 59,463 | (4) | |
$ | 1.20 | (6) | |
$ | 71,356 | | |
| 0.00014760 | | |
$ | 10.54 | |
| |
TOTAL: | |
| |
| 297,315 | | |
| | | |
$ | 406,727 | | |
| | | |
$ | 60.05 | |
| (1) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”),
this Registration Statement shall also cover any additional shares of common stock, $0.0001 par value per share (“Common
Stock”), of Heliogen, Inc. (the “Registrant”) that become issuable under the Heliogen, Inc.
2021 Equity Incentive Plan (the “2021 Plan”) and under the Heliogen, Inc. 2021 Employee Stock Purchase Plan
(the “2021 ESPP”) by reason of any stock dividend, stock split, recapitalization or any other similar transaction
which results in an increase in the number of shares of the Registrant’s outstanding Common Stock. |
| (2) | Each share of common stock registered hereunder includes an associated right (the “Rights”)
as set forth in the Rights Agreement, dated as of April 16, 2023, between the registrant and Continental Stock Transfer & Trust Company,
as rights agent. Rights are attached to the shares of common stock, will not be offered separately, and are not exercisable until the
occurrence of certain events specified in the Rights Agreement. The value attributable to the Rights, if any, is reflected in the value
of the common stock. |
| (3) | Represents shares of Common Stock that were added to the shares authorized for issuance under the 2021
Plan on January 1, 2024, pursuant to an “evergreen” provision contained in the 2021 Plan. |
| (4) | Represents shares of Common Stock that were added to the shares authorized for issuance under the 2021
ESPP on January 1, 2024, pursuant to an “evergreen” provision contained in the 2021 ESPP. |
| (5) | Estimated solely for purposes of calculating the registration fee in accordance with Rule 457(c) and (h)
of the Securities Act based on a per share price of $1.41, the average of the high and low price of the Common Stock on March 22,
2024, as reported on the OTCQX, which date is within five business days prior to the filing of this Registration Statement. |
| (6) | Estimated solely for purposes of calculating the registration fee in accordance with Rule 457(c) and (h)
of the Securities Act based on a per share price of $1.20, the average of the high and low price of the Common Stock on March 22,
2024, as reported on the OTCQX, multiplied by 85%, which is the percentage of the price per share applicable to purchases under the 2021
ESPP. Under the 2021 ESPP, the purchase price of a share of Common Stock is equal to 85% of the fair market value of the Registrant’s
Common Stock on the offering date or the purchase date, whichever is less. |
| (7) | Calculated pursuant to Rule 457 of the Securities Act by calculating the product of (i) the proposed
maximum aggregate offering price and (ii) 0.00014760. |
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