As filed with the Securities and Exchange Commission on March 2, 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
ESS TECH, INC.
(Exact name of Registrant as specified in its charter)
| | | | | | | | |
| | |
| 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:
| | | | | | | | |
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 (888) 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.
| | | | | | | | | | | | | | | | | | | | |
| | | | | | |
| 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. ☐
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 2021, 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, 2023, the number of shares of the Registrant’s common stock available for grant and issuance under the 2021 Plan increased by 4,614,640 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); and (ii) the registration statement on Form S-8 filed with the SEC on March 4, 2022 (File No. 333-263281), 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:
| | | | | |
| (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 1, 2023 (the “2022 Form 10-K”); and |
| (2) | The description of our Common Stock contained in our Registration Statement on Form 8-A (File No. 333-257232) 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 2022 Form 10-K, 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 8. Exhibits.
The Registrant has filed the exhibits listed on the accompanying Exhibit Index of this Registration Statement.
EXHIBIT INDEX
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | |
| | | | | 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 | | | | 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* | | | | | | | | | | |
| 99.1† | | | | 10-K | | 001-39525 | | 10.9 | | March 1, 2022 |
| 107* | | | | | | | | | | |
| | | | | |
| * | 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 March 2, 2023.
| | | | | | | | |
| 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, Craig Evans 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.
| | | | | | | | | | | | | | |
| Signature | | Title | | Date |
| | | | |
| /s/ Eric P. Dresselhuys | | Chief Executive Officer and Director | | March 2, 2023 |
| Eric P. Dresselhuys | | (Principal Executive Officer) | | |
| | | | |
| /s/ Anthony Rabb | | Chief Financial Officer | | March 2, 2023 |
| Anthony Rabb | | (Principal Financial and Accounting Officer) | | |
| | | | |
| /s/ Craig Evans | | President and Director | | March 2, 2023 |
| Craig Evans | | | | |
| | | | |
/s/ Raffi Garabedian | | Director | | March 2, 2023 |
| Raffi Garabedian | | | | |
| | | | |
| /s/ Rich Hossfeld | | Director | | March 2, 2023 |
| Rich Hossfeld | | | | |
| | | | |
| /s/ Michael Niggli | | Director | | March 2, 2023 |
| Michael Niggli | | | | |
| | | | |
| /s/ Kyle Teamey | | Director | | March 2, 2023 |
| Kyle Teamey | | | | |
| | | | |
| /s/ Alexi Wellman | | Director | | March 2, 2023 |
| Alexi Wellman | | | | |
| | | | |
| | | | | | | | | | | | | | |
| /s/ Daryl Wilson | | Director | | March 2, 2023 |
| Daryl Wilson | | | | |
Calculation of Filing Fee Tables
Form S-8
(Form Type)
ESS Tech, Inc.
(Exact name of registrant as specified in its charter)
| | | | | | | | | | | | | | | | | | | | | | | |
| 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 | Rule 457(c) and Rule 457(h) | 4,614,640 (2) | $1.79 (3) | $8,260,205.60 | $110.20 per $1,000,000 | $910.27 |
| Total Offering Amounts | | $8,260,205.60 | | $910.27 |
| Total Fee Offsets | | | | - |
| Net Fee Due | | | | $910.27 |
(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, 2023 of 4,614,640 shares of the Registrant’s common stock, which annual increase was determined by 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 $1.79 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 27, 2023.
| | | | | |
| Wilson Sonsini Goodrich & Rosati
Professional Corporation 650 Page Mill Road
Palo Alto, California 94304-1050 o: 650.493.9300
f: 650.493.6811 |
March 2, 2023
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 an aggregate of up to 4,614,640 shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (“Common Stock”). The Shares include 4,614,640 shares of 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
AUSTIN BEIJING BOSTON BRUSSELS HONG KONG LONDON LOS ANGELES NEW YORK
PALO ALTO SAN DIEGO SAN FRANCISCO SEATTLE SHANGHAI WASHINGTON, DC WILMINGTON, DE
ESS Tech, Inc.
March 2, 2023
Page 2
extrinsic to the provisions of the written agreements between the parties that the parties intended a meaning contrary to that expressed by those provisions.
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
