As filed with the Securities and Exchange Commission on
November 3, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
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
(State or other jurisdiction of
incorporation or organization)
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98-1550150
(I.R.S. Employer
Identification Number)
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26440 SW Parkway Ave., Bldg. 83
Wilsonville, Oregon 97070
(855) 423-9920
(Address, including zip code, and telephone number, including area
code, of registrant’s principal executive offices)
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Eric Dresselhuys
Chief Executive Officer
ESS Tech, Inc.
26440 SW Parkway Ave., Bldg. 83
Wilsonville, Oregon 97070
(855) 423-9920
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copies to:
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Mark B. Baudler
Andrew D. Hoffman
Christoph Luschin
Alexandra Perry
Wilson Sonsini Goodrich & Rosati,
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
(650) 493-9300
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Amir Moftakhar
Chief Financial Officer
ESS Tech, Inc.
26440 SW Parkway Ave., Bldg. 83
Wilsonville, Oregon 97070
(855) 423-9920
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From time to time after the effective date of this registration
statement.
(Approximate date of commencement of proposed sale to the
public)
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box: ☐
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
check the following box. ☒
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective registration
statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, please check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering. ☐
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Securities and Exchange
Commission pursuant to Rule 462(e) under the Securities Act,
check the following box. ☐
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the
following box. ☐
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
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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Emerging growth company
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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 Securities
Act. ☐
The registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities
Act of 1933 or until the registration statement shall become
effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may
determine.
The information in this prospectus is not complete and may be
changed. The securities may not be sold until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities
and it is not soliciting an offer to buy these securities in any
state where the offer or sale is not permitted.
Subject to Completion, dated November 3, 2022
PROSPECTUS
$300,000,000
Common Stock
Preferred Stock
Debt Securities
Depositary Shares
Warrants
Subscription Rights
Purchase Contracts
Units
The securities covered by this prospectus may be sold by ESS Tech,
Inc. from time to time. This prospectus provides you with a general
description of the securities.
We may issue securities from time to time in one or more offerings,
in amounts, at prices and on terms determined at the time of
offering. This prospectus describes the general terms of these
securities and the general manner in which these securities will be
offered. We will provide the specific terms of these securities in
supplements to this prospectus, which will also describe the
specific manner in which these securities will be offered and may
also supplement, update or amend information contained in this
prospectus. You should read this prospectus and any applicable
prospectus supplement before you invest. The aggregate offering
price of the securities we sell pursuant to this prospectus will
not exceed $300,000,000.
The securities may be sold directly to you, through agents or
through underwriters and dealers. If agents, underwriters or
dealers are used to sell the securities, we will name them and
describe their compensation in a prospectus supplement. The price
to the public of those securities and the net proceeds we expect to
receive from that sale will also be set forth in a prospectus
supplement.
Our common stock is listed on the New York Stock Exchange under the
symbol “GWH” and our public warrants are listed on the New York
Stock Exchange under the symbol “GWH.W.” Each prospectus supplement
will indicate whether the securities offered thereby will be listed
on any securities exchange.
We are an “emerging growth company” as defined under the federal
securities laws, and, as such, may elect to comply with certain
reduced public company reporting requirements for this and future
filings. We will provide information in any applicable prospectus
supplement regarding any listing of securities other than shares of
our common stock on any securities exchange.
INVESTING IN OUR SECURITIES INVOLVES A HIGH DEGREE OF RISK. PLEASE
CAREFULLY READ THE INFORMATION UNDER THE HEADINGS “RISK
FACTORS”
BEGINNING ON PAGE
4
OF THIS PROSPECTUS AND “ITEM 1A – RISK FACTORS” OF OUR MOST RECENT
REPORT ON FORM 10-K OR 10-Q THAT IS INCORPORATED BY REFERENCE IN
THIS PROSPECTUS BEFORE YOU INVEST IN OUR SECURITIES.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is
,
2022.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed
with the Securities and Exchange Commission (the “SEC”), using a
“shelf” registration process. Under this shelf registration
process, we may from time to time sell any combination of the
securities described in this prospectus in one or more offerings
for an aggregate offering price of up to $300,000,000.
This prospectus provides you with a general description of the
securities that may be offered. Each time we sell securities, we
will provide one or more prospectus supplements that will contain
specific information about the terms of the offering. The
prospectus supplement may also add, update or change information
contained in this prospectus. You should read both this prospectus
and any applicable prospectus supplement together with the
additional information described under the headings
“Where
You Can Find More Information”
and “Incorporation
by Reference.”
We have not authorized anyone to provide you with information that
is different from that contained, or incorporated by reference, in
this prospectus, any applicable prospectus supplement or in any
related free writing prospectus. We take no responsibility for, and
can provide no assurance as to the reliability of, any other
information that others may give you. This prospectus and any
applicable prospectus supplement or any related free writing
prospectus do not constitute an offer to sell or the solicitation
of an offer to buy any securities other than the securities
described in the applicable prospectus supplement or an offer to
sell or the solicitation of an offer to buy such securities in any
circumstances in which such offer or solicitation is unlawful. You
should assume that the information appearing in this prospectus,
any prospectus supplement, the documents incorporated by reference
and any related free writing prospectus is accurate only as of
their respective dates. Our business, financial condition, results
of operations and prospects may have changed materially since those
dates.
The ESS design logo and the ESS mark appearing in this prospectus
are the property of ESS Tech, Inc. Trade names, trademarks and
service marks of other companies appearing in this prospectus are
the property of their respective holders. We have omitted the ® and
TM designations, as applicable, for the trademarks used in this
prospectus.
PROSPECTUS SUMMARY
This summary highlights selected information that is presented in
greater detail elsewhere, or incorporated by reference, in this
prospectus. It does not contain all of the information that may be
important to you and your investment decision. Before investing in
our securities, you should carefully read this entire prospectus,
including the matters set forth under the section of this
prospectus captioned “Risk Factors” and the financial statements
and related notes and other information that we incorporate by
reference herein, including our Annual Report on Form 10-K and our
Quarterly Reports on Form 10-Q. Unless the context indicates
otherwise, references in this prospectus to “ESS,” “we,” “our,”
“us,” the “registrant” and the “Company” refer, collectively, to
ESS Tech, Inc., a Delaware corporation, and its subsidiaries taken
as a whole.
Company Overview
ESS is a long-duration energy storage company specializing in iron
flow battery technology. We design and produce long-duration
batteries predominantly using earth-abundant materials that we
expect can be cycled over 20,000 times without capacity fade.
Because we designed our batteries to operate using an electrolyte
of primarily salt, iron and water, they are non-toxic and
substantially recyclable.
Our long-duration iron flow batteries are the product of nearly 50
years of scientific advancement. Our founders, Craig Evans and Dr.
Julia Song, began advancing this technology in 2011 and formed ESS.
Our team has significantly enhanced the technology, improved the
round-trip efficiency and developed an innovative and patented
solution to the hydroxide build-up problem that plagued previous
researchers developing iron flow batteries. Our proprietary
solution to eliminate the hydroxide formation is known as the
Proton Pump, and it works by utilizing hydrogen generated by side
reactions on the negative electrode. The Proton Pump converts the
hydrogen back into protons in the positive electrolyte. This
process eliminates the hydroxide and stabilizes the electrolytes’
pH levels. The Proton Pump is designed to allow the electrolyte to
be used for over 20,000 cycles without any capacity
fade.
Our batteries provide flexibility to grid operators and energy
assurance for commercial and industrial customers. Our technology
addresses energy delivery, duration and cycle-life in a single
battery platform that compares favorably to lithium-ion batteries,
the most widely deployed alternative technology. Using our iron
flow battery technology, we are developing two products, each of
which is able to provide reliable, safe, long-duration energy
storage. Our first energy storage product, the Energy Warehouse, is
our “behind-the-meter” solution (referring to solutions that are
located on the customer’s premises, behind the service demarcation
with the utility) that offers energy storage ranging from four to
12-hour duration. Our second, larger scale energy storage product,
the Energy Center, is designed for “front-of-the-meter” (referring
to solutions that are located outside the customer’s premises,
typically operated by the utility or by third-party providers who
sell energy into the grid, often known as independent power
producers) deployments specifically for utility and large
commercial and industrial consumers.
We began shipping our second-generation Energy Warehouses in the
third quarter of 2021 and, during the second quarter of 2022, we
received final customer acceptance for the first units shipped.
With each battery deployed, we will further our mission to
accelerate the transition to a zero-carbon energy future with
increased grid reliability.
Corporate Information
On October 8, 2021 (the “Closing Date”), ESS, f/k/a ACON S2
Acquisition Corp., a Cayman Islands exempted company (“STWO”),
consummated a merger pursuant to that certain Agreement and Plan of
Merger, dated May 6, 2021 (the “Merger Agreement”), by and among
STWO, SCharge Merger Sub, Inc., a Delaware corporation and wholly
owned direct subsidiary of STWO (“Merger Sub”), and ESS Tech
Subsidiary, Inc., a Delaware corporation, f/k/a ESS Tech, Inc.
(“Legacy ESS”) following the approval at a special meeting of the
stockholders of STWO held on October 5, 2021.
Pursuant to the terms of the Merger Agreement, STWO deregistered by
way of continuation under the Cayman Islands Companies Act (2021
Revision) and registered as a corporation in the State of Delaware
under Part XII of the Delaware General Corporation Law, and a
business combination between STWO and ESS was effected through the
merger of Merger Sub with and into Legacy ESS, with Legacy ESS
surviving as a wholly owned subsidiary of
STWO (together with the other transactions described in the Merger
Agreement, the “Merger”). On the Closing Date, the registrant
changed its name from “ACON S2 Acquisition Corp” to “ESS Tech,
Inc.”
On October 11, 2021, our common stock and public warrants to
purchase shares of common stock, exercisable for one share of
common stock at a price of $11.50 per share, subject to
adjustments, formerly those of STWO, began trading on the New York
Stock Exchange under the ticker symbols “GWH” and “GWH.W,”
respectively.
Our principal executive offices are located at 26440 SW Parkway
Ave., Bldg. 83, Wilsonville, Oregon 97070, and our telephone number
is (855) 423-9920.
Our website address is https://essinc.com. The information on, or
that can be accessed through, our website is not part of this
prospectus and should not be considered to be part of this
prospectus unless expressly noted.
The Securities That May Be Offered
We may offer or sell common stock, preferred stock, depositary
shares, debt securities, warrants, subscription rights, purchase
contracts and units in one or more offerings and in any
combination. The aggregate offering price of the securities we sell
pursuant to this prospectus will not exceed $300,000,000. Each time
securities are offered with this prospectus, we will provide a
prospectus supplement that will describe the specific amounts,
prices and terms of the securities being offered and the net
proceeds we expect to receive from that sale.
The securities may be sold to or through underwriters, dealers or
agents or directly to purchasers or as otherwise set forth in the
section of this prospectus under the heading “Plan
of Distribution.”
Each prospectus supplement will set forth the names of any
underwriters, dealers, agents or other entities involved in the
sale of securities described in that prospectus supplement and any
applicable fee, commission or discount arrangements with
them.
Common Stock
We may offer shares of our common stock, par value $0.0001 per
share, either alone or underlying other registered securities
convertible into our common stock. Holders of our common stock are
entitled to receive dividends declared by our board of directors
out of funds legally available for the payment of dividends,
subject to rights, if any, of preferred stockholders. We have not
paid dividends in the past and have no current plans to pay
dividends. Each holder of common stock is entitled to one vote per
share. The holders of common stock have no preemptive
rights.
Preferred Stock
Our board of directors has the authority, subject to limitations
prescribed by Delaware law, to issue preferred stock in one or more
series, to establish from time to time the number of shares to be
included in each series, and to fix the designation, powers,
preferences and rights of the shares of each series and any of its
qualifications, limitations or restrictions, in each case without
further vote or action by our stockholders. Each series of
preferred stock offered by us will be more fully described in the
particular prospectus supplement that will accompany this
prospectus, including redemption provisions, rights in the event of
our liquidation, dissolution or winding up, voting rights and
rights to convert into common stock.
Depositary Shares
We may issue fractional shares of preferred stock that will be
represented by depositary shares and depositary
receipts.
Each series of depositary shares or depositary receipts offered by
us will be more fully described in the particular prospectus
supplement that will accompany this prospectus, including
redemption provisions, rights in the event of our liquidation,
dissolution or winding up, voting rights and rights to convert into
common stock.
Debt Securities
We may offer secured or unsecured obligations in the form of one or
more series of senior or subordinated debt. The senior debt
securities and the subordinated debt securities are together
referred to in this prospectus as the “debt securities.” The
subordinated debt securities generally will be entitled to payment
only after payment of our senior debt. Senior debt generally
includes all debt for money borrowed by us, except debt that is
stated in the instrument governing the terms of that debt to be not
senior to, or to have the same rank in right of payment as, or to
be expressly junior to, the subordinated debt securities. We may
issue debt securities that are convertible into or exchangeable for
shares of our common stock.
The debt securities will be issued under an indenture between us
and a trustee to be identified in an accompanying prospectus
supplement. We have summarized the general features of the debt
securities to be governed by the indenture in this prospectus and
the form of indenture has been filed as an exhibit to the
registration statement of which this prospectus forms a part. We
encourage you to read the indenture.
Warrants
We may offer warrants for the purchase of common stock, preferred
stock, debt securities or depositary shares. We may offer warrants
independently or together with other securities.
Subscription Rights
We may offer subscription rights to purchase our common stock,
preferred stock, debt securities, depositary shares, warrants or
units consisting of some or all of these securities. These
subscription rights may be offered independently or together with
any other security offered hereby and may or may not be
transferable by the stockholder receiving the subscription rights
in such offering.
Purchase Contracts
We may offer purchase contracts, including contracts obligating
holders or us to purchase from the other a specific or variable
number of securities at a future date or dates.
Units
We may offer units comprised of one or more of the other classes of
securities described in this prospectus in any combination. Each
unit will be issued so that the holder of the unit is also the
holder of each security included in the unit.
RISK FACTORS
An investment in our securities involves a high degree of risk. The
prospectus supplement applicable to each offering of our securities
will contain a discussion of the risks applicable to an investment
in our securities. Prior to making a decision about investing in
our securities, you should carefully consider the specific factors
discussed under the section in the applicable prospectus supplement
captioned “Risk
Factors,”
together with all of the other information contained or
incorporated by reference in the prospectus supplement or appearing
or incorporated by reference in this prospectus. You should also
consider the risks, uncertainties and assumptions discussed under
“Part I—Item 1A—Risk
Factors”
of our most recent Annual Report on Form 10-K and in
“Part II—Item 1A—Risk
Factors”
in our most recent Quarterly Report on Form 10-Q filed
subsequent to such Form 10-K that are incorporated herein by
reference, as may be amended, supplemented or superseded from time
to time by other reports we file with the SEC in the future. The
risks and uncertainties we have described are not the only ones we
face. Additional risks and uncertainties not presently known to us
or that we currently deem immaterial may also affect our
operations.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, each prospectus supplement and the information
incorporated by reference in this prospectus and each prospectus
supplement contain certain statements that constitute
“forward-looking statements” within the meaning of Section 27A
of the Securities Act of 1933, as amended (the “Securities Act”),
and Section 21E of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”). The words “believe,” “may,” “will,”
“estimate,” “continue,” “anticipate,” “intend,” “expect,” “could,”
“would,” “project,” “plan,” “potentially,” “likely,” and similar
expressions and variations thereof are intended to identify
forward-looking statements, but are not the exclusive means of
identifying such statements. Those statements appear in this
prospectus, any accompanying prospectus supplement and the
documents incorporated herein and therein by reference,
particularly in the sections captioned “Risk
Factors”
and “Management’s
Discussion and Analysis of Financial Condition and Results of
Operations”
and include statements regarding the intent, belief or current
expectations of our management that are subject to known and
unknown risks, uncertainties and assumptions. You are cautioned
that any such forward-looking statements are not guarantees of
future performance and involve risks and uncertainties, and that
actual results may differ materially from those projected in the
forward-looking statements as a result of various
factors.
Because forward-looking statements are inherently subject to risks
and uncertainties, some of which cannot be predicted or quantified,
you should not rely upon forward-looking statements as predictions
of future events. The events and circumstances reflected in the
forward-looking statements may not be achieved or occur and actual
results could differ materially from those projected in the
forward-looking statements. Except as required by applicable law,
including the securities laws of the United States and the rules
and regulations of the SEC, we do not plan to publicly update or
revise any forward-looking statements contained herein after we
distribute this prospectus, whether as a result of any new
information, future events or otherwise.
In addition, statements that “we believe” and similar statements
reflect our beliefs and opinions on the relevant subject. These
statements are based upon information available to us as of the
date of this prospectus, and although we believe such information
forms a reasonable basis for such statements, such information may
be limited or incomplete, and our statements should not be read to
indicate that we have conducted a thorough inquiry into, or review
of, all potentially available relevant information. These
statements are inherently uncertain and investors are cautioned not
to unduly rely upon these statements.
This prospectus, any prospectus supplement and the documents
incorporated by reference in this prospectus may contain market
data that we obtain from industry sources. These sources do not
guarantee the accuracy or completeness of the information. Although
we believe that our industry sources are reliable, we do not
independently verify the information. The market data may include
projections that are based on a number of other projections. While
we believe these assumptions to be reasonable and sound as of the
date of this prospectus, actual results may differ from the
projections.
USE OF PROCEEDS
We will retain broad discretion over the use of the net proceeds to
us from the sale of our securities under this prospectus. Unless
otherwise provided in the applicable prospectus supplement, we
currently expect to use the net proceeds that we receive from this
offering for working capital and other general corporate purposes.
The expected use of net proceeds of this offering represents our
current intentions based on our present plans and business
conditions. We cannot specify with certainty all of the particular
uses for the net proceeds to be received upon the closing of this
offering. Pending these uses, we plan to invest the net proceeds of
this offering in short- and intermediate-term, interest-bearing
obligations, investment-grade instruments, certificates of deposit
or direct or guaranteed obligations of the U.S.
government.
DESCRIPTION OF CAPITAL STOCK
The following descriptions of our capital stock and certain
provisions of our certificate of incorporation and amended and
restated bylaws are summaries and are qualified by reference to the
certificate of incorporation and the amended and restated bylaws.
Copies of these documents have been filed with the SEC as exhibits
to our registration statement, of which this prospectus forms a
part.
Our authorized capital stock consists of 2,200,000,000 shares of
capital stock, of which:
•2,000,000,000
shares are designated as common stock, par value $0.0001 per share;
and
•200,000,000
shares are designated as preferred stock, par value $0.0001 per
share.
Our board of directors is authorized, without stockholder approval,
except as required by the listing standards of the New York Stock
Exchange, to issue additional shares of capital stock.
Common Stock
The holders of our common stock are entitled to one vote per share
on all matters submitted to a vote of the stockholders and do not
have cumulative voting rights. Accordingly, subject to the rights
of holders of any preferred stock outstanding at the time, where a
quorum is present at a meeting of stockholders, directors are
elected by plurality vote. Subject to preferences that may be
applicable to any preferred stock outstanding at the time, the
holders of outstanding shares of our common stock are entitled to
receive ratably any dividends declared by the board of directors
out of assets legally available. Upon the liquidation, dissolution
or winding up, holders of our common stock are entitled to share
ratably in all assets remaining after payment of liabilities and
the liquidation preference of any then outstanding shares of
preferred stock. Holders of our common stock have no preemptive or
conversion rights or other subscription rights. There are no
redemption or sinking fund provisions applicable to our common
stock.
Preferred Stock
Our board of directors is authorized, subject to limitations
prescribed by the Delaware General Corporation Law (“DGCL”), to
issue preferred stock in one or more series, to establish from time
to time the number of shares to be included in each series, and to
fix the designation, powers, preferences, and rights of the shares
of each series and any of its qualifications, limitations, or
restrictions, in each case without further vote or action by the
stockholders. The board of directors is empowered to increase, but
not above the total number of authorized shares of preferred stock,
or decrease the number of shares of any series of preferred stock,
but not below the number of shares of that series then outstanding,
without any further vote or action by the stockholders. Our board
of directors is able to authorize the issuance of preferred stock
with voting or conversion rights that could adversely affect the
voting power or other rights of the holders of our common stock.
The issuance of preferred stock, while providing flexibility in
connection with possible acquisitions and other corporate purposes,
could, among other things, have the effect of delaying, deferring,
or preventing a change in control of ESS and might adversely affect
the market price of our common stock and the voting and other
rights of the holders of our common stock. There are currently no
plans to issue any shares of preferred stock.
Warrants
Public Warrants
Each whole warrant entitles the registered holder to purchase one
share of common stock at a price of $11.50 per share, subject to
adjustment as discussed below. Pursuant to the Warrant Agreement,
dated September 16, 2020, as amended by the Assignment, Assumption
and Amendment Agreement, dated October 8, 2021 (together, the
“Warrant Agreement”), a warrant holder may exercise its warrants
only for a whole number of shares of common stock. This means only
a whole warrant may be exercised at a given time by a warrant
holder. No fractional warrants will be issued upon separation of
the units and only whole warrants trade. The warrants expire on
October 8, 2026, at 5:00 p.m., New York City time, or earlier upon
redemption or liquidation.
Redemption of Warrants when the price per share of our common stock
equals or exceeds $18.00.
Once the public warrants become exercisable, we may redeem the
outstanding warrants (excluding the private placement
warrants):
•in
whole and not in part;
•at
a price of $0.01 per public warrant;
•upon
a minimum of 30 days’ prior written notice of redemption to each
warrant holder; and
•if,
and only if, the closing price of our common stock equals or
exceeds $18.00 per share (as adjusted for adjustments to the number
of shares issuable upon exercise or the exercise price of a warrant
as described under the heading “—Anti-dilution
Adjustments”)
for any 20 trading days within a 30-trading day period ending three
trading days before we send the notice of redemption to the warrant
holders.
We will not redeem the warrants as described above unless a
registration statement under the Securities Act covering the
issuance of our common stock issuable upon exercise of the warrants
is then effective and a current prospectus relating to those shares
of our common stock is available throughout the 30-day Redemption
Period (as defined below). If and when the warrants become
redeemable, we may exercise our redemption right even if we are
unable to register or qualify the underlying securities for sale
under all applicable state securities laws.
We have established the last of the redemption criteria discussed
above to prevent a redemption call unless there is at the time of
the call a significant premium to the warrant exercise price. If
the foregoing conditions are satisfied and we issue a notice of
redemption of the warrants, each warrant holder will be entitled to
exercise his, her or its warrant prior to the scheduled redemption
date. However, the price of our common stock may fall below the
$18.00 redemption trigger price (as adjusted for adjustments to the
number of shares issuable upon exercise or the exercise price of a
warrant as described under the heading “—Anti-dilution
Adjustments”)
as well as the $11.50 (for whole shares) warrant exercise price
after the redemption notice is issued.
Redemption of warrants when the price per share of our common stock
equals or exceeds $10.00. Once the warrants become exercisable, we
may redeem the outstanding warrants:
•in
whole and not in part;
•at
$0.10 per warrant upon a minimum of 30 days’ prior written notice
of redemption provided that holders will be able to exercise their
warrants on a cashless basis prior to redemption and receive that
number of shares determined by reference to the table below, based
on the redemption date and the “fair market value” of our common
stock (as defined below) except as otherwise described
below;
•if,
and only if, the closing price of our common stock equals or
exceeds $10.00 per public share (as adjusted for adjustments to the
number of shares issuable upon exercise or the exercise price of a
warrant as described under the heading “—Anti-Dilution
Adjustments”)
for any 20 trading days within the 30-trading day period ending
three trading days before we send the notice of redemption to the
warrant holders; and
•if
the closing price of our common stock for any 20 trading days
within a 30-trading day period ending on the third trading day
prior to the date on which we send the notice of redemption to the
warrant holders is less than $18.00 per share (as adjusted for
adjustments to the number of shares issuable upon exercise or the
exercise price of a warrant as described under the heading
“—Anti-dilution
Adjustments”),
the preferred stock must also be concurrently called for redemption
on the same terms as the outstanding public warrants, as described
above.
In accordance with the Warrant Agreement, in the event that we
elect to redeem the outstanding warrants as set forth under the
headings “—Redemption
of Warrants when the price per share of our common stock equals or
exceeds $18.00”
and “—Redemption
of Warrants when the price per share of our common stock equals or
exceeds $10.00,”
we will fix a date for the redemption. Notice of redemption will be
mailed by first class mail, postage prepaid, by us to all
shareholders, including beneficial owners, not less than 30 days
prior to the redemption date (the “30-day Redemption Period”) to
the registered holders of the warrants to be redeemed at their last
addresses as
they appear on the registration books. Any notice mailed in the
manner provide above will be conclusively presumed to have been
duly given whether or not the registered holder of the warrants
received such notice. We are not contractually obligated to notify
investors when its warrants become eligible for redemption, and
does not intend to so notify investors upon eligibility of the
warrants for redemption.
Beginning on the date the notice of redemption is given until the
warrants are redeemed or exercised, holders may elect to exercise
their warrants on a cashless basis. The numbers in the table below
represent the number of shares of our common stock that a warrant
holder will receive upon such cashless exercise in connection with
a redemption by us pursuant to this redemption feature, based on
the “fair market value” of our common stock on the corresponding
redemption date (assuming holders elect to exercise their warrants
and such warrants are not redeemed for $0.10 per warrant),
determined for these purposes based on volume weighted average
price of our common stock during the 10 trading days immediately
following the date on which the notice of redemption is sent to the
holders of warrants, and the number of months that the
corresponding redemption date precedes the expiration date of the
warrants, each as set forth in the table below. We will provide
warrant holders with the final fair market value no later than one
business day after the 10-trading day period described above
ends.
The share prices set forth in the column headings of the table
below will be adjusted as of any date on which the number of shares
issuable upon exercise of a warrant or the exercise price of a
warrant is adjusted as set forth under the heading
“—Anti-dilution
Adjustments”
below. If the number of shares issuable upon exercise of a warrant
is adjusted, the adjusted share prices in the column headings will
equal the share prices immediately prior to such adjustment,
multiplied by a fraction, the numerator of which is the number of
shares deliverable upon exercise of a warrant immediately prior to
such adjustment and the denominator of which is the number of
shares deliverable upon exercise of a warrant as so adjusted. The
number of shares in the table below shall be adjusted in the same
manner and at the same time as the number of shares issuable upon
exercise of a warrant. If the exercise price of a warrant is
adjusted, (a) in the case of an adjustment pursuant to the fifth
paragraph under the heading “—Anti-dilution
Adjustments”
below, the adjusted share prices in the column headings will equal
the unadjusted share price multiplied by a fraction, the numerator
of which is the higher of the Market Value and the Newly Issued
Price as set forth under the heading “—Anti-dilution
Adjustments”
and the denominator of which is $10.00 and (b) in the case of an
adjustment pursuant to the second paragraph under the heading
“—Anti-dilution
Adjustments”
below, the
adjusted share prices in the column headings will equal the
unadjusted share price less the decrease in the exercise price of a
warrant pursuant to such exercise price adjustment.
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Redemption Date
(period to expiration of warrants) |
Fair Market Value of Common Stock |
|
$10.00 |
|
$11.00 |
|
$12.00 |
|
$13.00 |
|
$14.00 |
|
$15.00 |
|
$16.00 |
|
$17.00 |
|
$18.00 |
|
60 months
|
0.261 |
|
|
0.281 |
|
|
0.297 |
|
|
0.311 |
|
|
0.324 |
|
|
0.337 |
|
|
0.348 |
|
|
0.358 |
|
|
0.361 |
|
|
57 months
|
0.257 |
|
|
0.277 |
|
|
0.294 |
|
|
0.310 |
|
|
0.324 |
|
|
0.337 |
|
|
0.348 |
|
|
0.358 |
|
|
0.361 |
|
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54 months
|
0.252 |
|
|
0.272 |
|
|
0.291 |
|
|
0.307 |
|
|
0.322 |
|
|
0.335 |
|
|
0.347 |
|
|
0.357 |
|
|
0.361 |
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51 months
|
0.246 |
|
|
0.268 |
|
|
0.287 |
|
|
0.304 |
|
|
0.320 |
|
|
0.333 |
|
|
0.346 |
|
|
0.357 |
|
|
0.361 |
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48 months
|
0.241 |
|
|
0.263 |
|
|
0.283 |
|
|
0.301 |
|
|
0.317 |
|
|
0.332 |
|
|
0.344 |
|
|
0.356 |
|
|
0.361 |
|
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45 months
|
0.235 |
|
|
0.258 |
|
|
0.279 |
|
|
0.298 |
|
|
0.315 |
|
|
0.330 |
|
|
0.343 |
|
|
0.356 |
|
|
0.361 |
|
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42 months
|
0.228 |
|
|
0.252 |
|
|
0.274 |
|
|
0.294 |
|
|
0.312 |
|
|
0.328 |
|
|
0.342 |
|
|
0.355 |
|
|
0.361 |
|
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39 months
|
0.221 |
|
|
0.246 |
|
|
0.269 |
|
|
0.290 |
|
|
0.309 |
|
|
0.325 |
|
|
0.340 |
|
|
0.354 |
|
|
0.361 |
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36 months
|
0.213 |
|
|
0.239 |
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|
0.263 |
|
|
0.285 |
|
|
0.305 |
|
|
0.323 |
|
|
0.339 |
|
|
0.353 |
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|
0.361 |
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33 months
|
0.205 |
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|
0.232 |
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|
0.257 |
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|
0.280 |
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|
0.301 |
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|
0.320 |
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|
0.337 |
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|
0.352 |
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|
0.361 |
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30 months
|
0.196 |
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|
0.224 |
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|
0.250 |
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0.274 |
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0.297 |
|
|
0.316 |
|
|
0.335 |
|
|
0.351 |
|
|
0.361 |
|
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27 months
|
0.185 |
|
|
0.214 |
|
|
0.242 |
|
|
0.268 |
|
|
0.291 |
|
|
0.313 |
|
|
0.332 |
|
|
0.350 |
|
|
0.361 |
|
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24 months
|
0.173 |
|
|
0.204 |
|
|
0.233 |
|
|
0.260 |
|
|
0.285 |
|
|
0.308 |
|
|
0.329 |
|
|
0.348 |
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|
0.361 |
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21 months
|
0.161 |
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|
0.193 |
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|
0.223 |
|
|
0.252 |
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|
0.279 |
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|
0.304 |
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|
0.326 |
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|
0.347 |
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0.361 |
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18 months
|
0.146 |
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|
0.179 |
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|
0.211 |
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|
0.242 |
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|
0.271 |
|
|
0.298 |
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|
0.322 |
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|
0.345 |
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|
0.361 |
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15 months
|
0.130 |
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|
0.164 |
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|
0.197 |
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|
0.230 |
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|
0.262 |
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|
0.291 |
|
|
0.317 |
|
|
0.342 |
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|
0.361 |
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12 months
|
0.111 |
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0.146 |
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0.181 |
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0.216 |
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0.250 |
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0.282 |
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0.312 |
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|
0.339 |
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0.361 |
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9 months
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0.090 |
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0.125 |
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|
0.162 |
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|
0.199 |
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|
0.237 |
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|
0.272 |
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0.305 |
|
|
0.336 |
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0.361 |
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6 months
|
0.065 |
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|
0.099 |
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|
0.137 |
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|
0.178 |
|
|
0.219 |
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|
0.259 |
|
|
0.296 |
|
|
0.331 |
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|
0.361 |
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3 months
|
0.034 |
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|
0.065 |
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|
0.104 |
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|
0.150 |
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|
0.197 |
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|
0.243 |
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|
0.286 |
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|
0.326 |
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0.361 |
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0 months
|
— |
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— |
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|
0.042 |
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|
0.115 |
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|
0.179 |
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|
0.233 |
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|
0.281 |
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|
0.323 |
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|
0.361 |
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The exact fair market value and redemption date may not be set
forth in the table above, in which case, if the fair market value
is between two values in the table or the redemption date is
between two redemption dates in the table, the number of shares of
common stock to be issued for each warrant exercised will be
determined by a straight-line interpolation between the number of
shares set forth for the higher and lower fair market values and
the earlier and later redemption dates, as applicable, based on a
365 or 366-day year, as applicable. For example, if the volume
weighted average price of our common stock during the 10 trading
days immediately following the date on which the notice of
redemption is sent to the holders of the warrants is $11.00 per
share, and at such time there are 57 months until the expiration of
the warrants, holders may choose to, in connection with this
redemption feature, exercise their warrants for 0.277 shares of
common stock for each whole warrant. For an example where the exact
fair market value and redemption date are not as set forth in the
table above, if the volume weighted average price of our common
stock during the 10 trading days immediately following the date on
which the notice of redemption is sent to the holders of the
warrants is $13.50 per share, and at such time there are 38 months
until the expiration of the warrants, holders may choose to, in
connection with this redemption feature, exercise their warrants
for 0.298 shares of common stock for each whole warrant. In no
event will the warrants be exercisable on a cashless basis in
connection with this redemption feature for more than 0.361 shares
of common stock per warrant (subject to adjustment). Finally, as
reflected in the table above, if the warrants are out of the money
and about to expire, they cannot be exercised on a cashless basis
in connection with a redemption by us pursuant to this redemption
feature, since they will not be exercisable for any shares of
common stock.
This redemption feature differs from the typical warrant redemption
features used in some other blank check offerings, which only
provide for a redemption of warrants for cash (other than the
private placement warrants) when the trading price of our common
stock exceeds $18.00 per share for a specified period of time. This
redemption feature is structured to allow for all of the
outstanding warrants to be redeemed when our common
stock
is trading at or above $10.00 per public share, which may be at a
time when the trading price of our common stock is below the
exercise price of the warrants. We have established this redemption
feature to provide it with the flexibility to redeem the warrants
without the warrants having to reach the $18.00 per share threshold
set forth above under “—Redemption
of warrants when the price per share of our common stock equals or
exceeds $18.00.”
Holders choosing to exercise their warrants in connection with a
redemption pursuant to this feature will, in effect, receive a
number of shares for their warrants based on an option pricing
model with a fixed volatility input as of the date of this
prospectus. This redemption right provides us with an additional
mechanism by which to redeem all of the outstanding warrants, and
therefore have certainty as to its capital structure as the
warrants would no longer be outstanding and would have been
exercised or redeemed. We will be required to pay the applicable
redemption price to warrant holders if we choose to exercise this
redemption right and it will allow us to quickly proceed with a
redemption of the warrants if we determine it is in its best
interest to do so. As such, we would redeem the warrants in this
manner when we believe it is in its best interest to update its
capital structure to remove the warrants and pay the redemption
price to the warrant holders.
As stated above, we can redeem the warrants when our common stock
is trading at a price starting at $10.00, which is below the
exercise price of $11.50, because it will provide certainty with
respect to our capital structure and cash position while providing
warrant holders with the opportunity to exercise their warrants on
a cashless basis for the applicable number of shares. If we choose
to redeem the warrants when our common stock is trading at a price
below the exercise price of the warrants, this could result in the
warrant holders receiving fewer shares of Common Stock than they
would have received if they had chosen to wait to exercise their
warrants for our common stock if and when such shares were trading
at a price higher than the exercise price of $11.50.
No fractional shares of common stock will be issued upon exercise.
If, upon exercise, a holder would be entitled to receive a
fractional interest in a share, we will round down to the nearest
whole number of the number of shares of common stock to be issued
to the holder.
Redemption procedures.
A holder of a warrant may notify us in writing in the event it
elects to be subject to a requirement that such holder will not
have the right to exercise such warrant, to the extent that after
giving effect to such exercise, such person (together with such
person’s affiliates), to the warrant agent’s actual knowledge,
would beneficially own in excess of 9.8% (or such other amount as a
holder may specify) of our common stock issued and outstanding
immediately after giving effect to such exercise.
Anti-dilution Adjustments.
If the number of outstanding shares of common stock is increased by
a capitalization or share dividend payable in shares of common
stock, or by a split-up of ordinary shares or other similar event,
then, on the effective date of such capitalization or share
dividend, split-up or similar event, the number of shares of common
stock issuable on exercise of each warrant will be increased in
proportion to such increase in the outstanding ordinary shares. A
rights offering made to all or substantially all holders of
ordinary shares entitling holders to purchase shares of common
stock at a price less than the “historical fair market value” (as
defined below) will be deemed a share dividend of a number of
shares of common stock equal to the product of (i) the number of
shares of common stock actually sold in such rights offering (or
issuable under any other equity securities sold in such rights
offering that are convertible into or exercisable for shares of
common stock) and (ii) one minus the quotient of (x) the price per
share of common stock paid in such rights offering and (y) the
historical fair market value. For these purposes, (i) if the rights
offering is for securities convertible into or exercisable for
shares of common stock, in determining the price payable for shares
of common stock there will be taken into account any consideration
received for such rights, as well as any additional amount payable
upon exercise or conversion and (ii) “historical fair market value”
means the volume weighted average price of our common stock as
reported during the 10 trading day period ending on the trading day
prior to the first date on which the shares of common stock trade
on the applicable exchange or in the applicable market, regular
way, without the right to receive such rights.
In addition, if we, at any time while the warrants are outstanding
and unexpired, pays a dividend or make a distribution in cash,
securities or other assets to all or substantially all of the
holders of shares of common stock on account of such shares (or
other securities into which the warrants are convertible), other
than (a) as described above, or (b) any cash dividends or cash
distributions which, when combined on a per share basis with all
other cash dividends and cash distributions paid on the shares of
common stock during the 365-day period ending on the date of
declaration of such dividend or distribution does not exceed $0.50
(as adjusted to appropriately reflect any other
adjustments and excluding cash dividends or cash distributions that
resulted in an adjustment to the exercise price or to the number of
the shares of common stock issuable on exercise of each warrant)
but only with respect to the amount of the aggregate cash dividends
or cash distributions equal to or less than $0.50 per
share.
If the number of outstanding shares of common stock is decreased by
a consolidation, combination, reverse share split or
reclassification of shares of common stock or other similar event,
then, on the effective date of such consolidation, combination,
reverse share split, reclassification or similar event, the number
of shares of common stock issuable on exercise of each warrant will
be decreased in proportion to such decrease in outstanding shares
of common stock.
Whenever the number of shares of common stock purchasable upon the
exercise of the warrants is adjusted, as described above, the
warrant exercise price will be adjusted by multiplying the warrant
exercise price immediately prior to such adjustment by a fraction
(x) the numerator of which will be the number of shares of common
stock purchasable upon the exercise of the warrants immediately
prior to such adjustment and (y) the denominator of which will be
the number of shares of common stock so purchasable immediately
thereafter.
In case of any reclassification or reorganization of the
outstanding shares of common stock (other than those described
above or that solely affects the par value of such shares of common
stock), or in the case of any merger or consolidation of us with or
into another corporation (other than a consolidation or merger in
which we are the continuing corporation and that does not result in
any reclassification or reorganization of outstanding shares of
common stock), or in the case of any sale or conveyance to another
corporation or entity of our assets or other property as an
entirety or substantially as an entirety in connection with which
we are dissolved, the holders of the warrants will thereafter have
the right to purchase and receive, upon the basis and upon the
terms and conditions specified in the warrants and in lieu of the
shares of common stock immediately theretofore purchasable and
receivable upon the exercise of the rights represented thereby, the
kind and amount of shares of common stock or other securities or
property (including cash) receivable upon such reclassification,
reorganization, merger or consolidation, or upon a dissolution
following any such sale or transfer, that the holder of the
warrants would have received if such holder had exercised their
warrants immediately prior to such event. However, if such holders
were entitled to exercise a right of election as to the kind or
amount of securities, cash or other assets receivable upon such
consolidation or merger, then the kind and amount of securities,
cash or other assets for which each warrant will become exercisable
will be deemed to be the weighted average of the kind and amount
received per share by such holders in such consolidation or merger
that affirmatively make such election, and if a tender, exchange or
redemption offer has been made to and accepted by such holders
under circumstances in which, upon completion of such tender or
exchange offer, the maker thereof, together with members of any
group (within the meaning of Rule 13d-5(b)(1) under the Exchange
Act) of which such maker is a part, and together with any affiliate
or associate of such maker (within the meaning of Rule 12b-2 under
the Exchange Act) and any members of any such group of which any
such affiliate or associate is a part, own beneficially (within the
meaning of Rule 13d-3 under the Exchange Act) more than 50% of the
issued and outstanding shares of common stock, the holder of a
warrant will be entitled to receive the highest amount of cash,
securities or other property to which such holder would actually
have been entitled as a shareholder if such warrant holder had
exercised the warrant prior to the expiration of such tender or
exchange offer, accepted such offer and all of the shares of common
stock held by such holder had been purchased pursuant to such
tender or exchange offer, subject to adjustment (from and after the
consummation of such tender or exchange offer) as nearly equivalent
as possible to the adjustments provided for in the warrant
agreement. If less than 70% of the consideration receivable by the
holders of shares of common stock in such a transaction is payable
in the form of shares in the successor entity that is listed for
trading on a national securities exchange or is quoted in an
established over-the-counter market, or is to be so listed for
trading or quoted immediately following such event, and if the
registered holder of the warrant properly exercises the warrant
within thirty days following public disclosure of such transaction,
the warrant exercise price will be reduced as specified in the
warrant agreement based on the Black-Scholes value (as defined in
the warrant agreement) of the warrant. The purpose of such exercise
price reduction is to provide additional value to holders of the
warrants when an extraordinary transaction occurs during the
exercise period of the warrants pursuant to which the holders of
the warrants otherwise do not receive the full potential value of
the warrants. The purpose of such exercise price reduction is to
provide additional value to holders of the warrants when an
extraordinary transaction occurs during
the exercise period of the warrants pursuant to which the holders
of the warrants otherwise do not receive the full potential value
of the warrants.
The warrant holders do not have the rights or privileges of holders
of ordinary shares and any voting rights until they exercise their
warrants and receive shares of common stock. After the issuance of
shares of common stock upon exercise of the warrants, each holder
will be entitled to one vote for each share held of record on all
matters to be voted on by shareholders.
No fractional warrants will be issued upon separation of the units
and only whole warrants will trade. If, upon exercise of the
warrants, a holder would be entitled to receive a fractional
interest in a share, we will, upon exercise, round down to the
nearest whole number the number of shares of common stock to be
issued to the warrant holder.
We have agreed that, subject to applicable law, any action,
proceeding or claim against it arising out of or relating in any
way to the Warrant Agreement will be brought and enforced in the
courts of the State of New York or the United States District Court
for the Southern District of New York, and we irrevocably submits
to such jurisdiction, which jurisdiction will be the exclusive
forum for any such action, proceeding or claim. This provision
applies to claims under the Securities Act but does not apply to
claims under the Exchange Act or any claim for which the federal
district courts of the United States of America are the sole and
exclusive forum.
Private Placement Warrants
Except as described below, the private placement warrants have
terms and provisions that are identical to those of the public
warrants. 3,500,000 of the private placement warrants vested on
October 8, 2021 pursuant to the terms of the Sponsor Letter
Agreement (the “Sponsor Letter Agreement”), dated as of May 6,
2021, by and among ACON S2 Sponsor, L.L.C., a Delaware limited
liability company (the “Sponsor”), ESS, Legacy ESS, and, solely for
purposes of certain sections, the Insiders (as defined in the
Sponsor Letter Agreement). The remaining 583,334 of the private
placement warrants vested on November 9, 2021, upon the
occurrence of the earnout milestone events pursuant to the Sponsor
Letter Agreement. The private placement warrants will not be
redeemable by us (except as described under “—Public
Warrants—Redemption of warrants when the price per share of our
common stock equals or exceeds $10.00”)
so long as they are held by the Sponsor or its permitted
transferees (except as otherwise set forth herein). The Sponsor, or
its permitted transferees, has the option to exercise the private
placement warrants on a cashless basis. If the private placement
warrants are held by holders other than the Sponsor or its
permitted transferees, the private placement warrants will be
redeemable by us in all redemption scenarios and exercisable by the
holders on the same basis as the public warrants. Any amendment to
the terms of the private placement warrants or any provision of the
Warrant Agreement with respect to the private placement warrants
will require a vote of holders of at least 50% of the number of the
then outstanding private placement warrants.
Except as described above under “—Public
Warrants—Redemption of warrants when the price per share of our
common stock equals or exceeds $10.00,”
if holders of the private placement warrants elect to exercise them
on a cashless basis, they would pay the exercise price by
surrendering his, her or its warrants for that number of shares of
common stock equal to the quotient obtained by dividing (x) the
product of the number of shares of common stock underlying the
warrants, multiplied by the excess of the “Sponsor fair market
value” (as defined below) over the exercise price of the warrants
by (y) the Sponsor fair market value. For these purposes, the
“Sponsor fair market value” shall mean the average reported closing
price of the shares of common stock for the 10 trading days ending
on the third trading day prior to the date on which the notice of
warrant exercise is sent to the warrant agent.
Registration Rights
Under the Registration Rights Agreement (the “Registration Rights
Agreement”), dated October 8, 2021, by and among ESS, the
Sponsor and other holders of common stock, the holders of
73,022,199 shares of common stock or their permitted transferees
have the right to require us to register the offer and sale of
their shares, or to include their shares in any registration
statement we file, in each case as described below.
Resale Registration Statement
We filed a registration statement on Form S-1 on November 2,
2021 (File No. 333-260693) (the “Initial Resale Registration
Statement”), Post-Effective Amendment No. 1 to the Initial
Resale Registration Statement on December 9, 2021, and a
registration statement on Form S-1 and Post-Effective
Amendment No. 2 to the Initial Resale Registration Statement on
March 4, 2022 (File No. 333-263316) (the “Additional Resale
Registration Statement” and together with the Initial Resale
Registration Statement, the “Resale Registration Statements”) for
an offering of our common stock to be made on a delayed or
continuous basis. Pursuant to the Registration Rights Agreement,
the holders of at least $30.0 million of shares having registration
rights then outstanding can request that we effect an underwritten
public offering pursuant to such Resale Registration Statements. We
are only obligated to effect no more than four such registrations
within any 12-month period. These registration rights are subject
to specified conditions and limitations, including the right of the
underwriters to limit the number of shares included in any such
registration under certain circumstances.
The Additional Resale Registration Statement was declared effective
by the SEC on March 16, 2022.
On November 3, 2022, we filed a post-effective amendment to the
Resale Registration Statements to convert the Resale Registration
Statements on Form S-1 into a registration statement on Form
S-3.
Piggyback Registration Rights
If we propose to register the offer and sale of our common stock
under the Securities Act, all holders of these shares then
outstanding can request that we include their shares in such
registration, subject to certain marketing and other limitations,
including the right of the underwriters to limit the number of
shares included in any such registration statement under certain
circumstances. As a result, whenever we propose to file a
registration statement under the Securities Act, other than with
respect to a registration (i) relating to any employee stock option
or other benefit plan, (ii) on Form S-4 (or similar form that
relates to a transaction subject to Rule 145 under the Securities
Act or any successor rule thereto), (iii) relating to an offering
of debt that is convertible into equity securities of ESS, or (iv)
for a dividend reinvestment plan.
Termination
The registration rights terminate upon the date as of which all of
the registrable securities have been sold pursuant to a
registration statement or are permitted to be sold under Rule 144
or any similar provision under the Securities Act.
Registration Rights for PIPE Shares
On May 6, 2021, STWO entered into subscription agreements with
certain investors, pursuant to which STWO agreed to issue and sell
to the investors 25,000,000 shares of common stock (“PIPE Shares”)
at a purchase price of $10.00 per share for an aggregate commitment
of $250,000,000 (the “PIPE Financing”). The PIPE Financing was
consummated on October 8, 2021. The Resale Registration Statements
also registered the PIPE Shares for resale.
Form S-8 Registration Statement
We filed a registration statement on Form S-8 under the Securities
Act to register the shares of Common Stock issued or issuable under
our 2021 Employee Stock Purchase Plan, 2021 Equity Incentive Plan
and 2014 Equity Incentive Plan. The Form S-8 registration
statement became effective automatically upon filing, and shares
covered by the registration statement became eligible for sale in
the public market, subject to Rule 144 limitations applicable to
affiliates and vesting restrictions.
Limitation of Liability and Indemnification
Our certificate of incorporation contains provisions that limit the
liability of our directors for monetary damages to the fullest
extent permitted by the DGCL. In addition, if the DGCL is amended
to authorize corporate action further eliminating or limiting the
personal liability of directors of corporations, then the personal
liability of our directors will be eliminated or limited to the
greatest extent permitted by the DGCL.
In addition, our bylaws, which became effective upon consummation
of the Merger, provides that we will indemnify our directors and
officers to the fullest extent permitted by the DGCL and we may
indemnify our employees, agents and any other persons to the extent
not prohibited by the DGCL or other applicable law. Our amended and
restated bylaws will also provide that we must advance expenses
incurred by or on behalf of a director or officer in advance of the
final disposition of any action or proceeding, subject to limited
exceptions.
Further, we have entered into indemnification agreements with our
directors and executive officers that are broader than the specific
indemnification provisions contained in the DGCL and may continue
to do so in the future. These indemnification agreements require us
to indemnify our directors and executive officers against
liabilities that may arise by reason of their status or service.
These indemnification agreements also require us to advance all
expenses reasonably and actually incurred by our directors and
executive officers in investigating or defending any such action,
suit or proceeding. We believe that these agreements are necessary
to attract and retain qualified individuals to serve as directors
and executive officers.
We also maintain insurance policies under which our directors and
officers are insured, within the limits and subject to the
limitations of those policies, against certain expenses in
connection with the defense of, and certain liabilities which might
be imposed as a result of, actions, suits, or proceedings to which
they are parties by reason of being or having served as a director
or officer of ESS. At present, we are not aware of any pending
litigation or proceeding involving any person who is one of our
directors or officers or is or was one of our directors or
officers, or is or was one of our directors or officers serving at
our request as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
for which indemnification is sought, and we are not aware of any
threatened litigation that may result in claims for
indemnification.
Description of Certain Terms in the Charter Documents and Delaware
Law
The certificate of incorporation and amended and restated bylaws
contain provisions that could have the effect of delaying,
deferring or discouraging another party from acquiring control of
ESS. These provisions and certain provisions of Delaware law, which
are summarized below, could discourage takeovers, coercive or
otherwise. These provisions are also designed, in part, to
encourage persons seeking to acquire control of ESS to negotiate
first with our board of directors. ESS believes that the benefits
of increased protection of the potential ability to negotiate with
an unfriendly or unsolicited acquirer outweigh the disadvantages of
discouraging a proposal to acquire the Company.
Issuance of Undesignated Preferred Stock.
As discussed above under “—Preferred
Stock,”
our board of directors has the ability to designate and issue
preferred stock with voting or other rights or preferences that
could deter hostile takeovers or delay changes in control or
management.
Limits on Ability of Stockholders to Act by Written Consent or Call
a Special Meeting.
The certificate of incorporation provides that the stockholders may
not act by written consent. This limit on the ability of
stockholders to act by written consent may lengthen the amount of
time required to take stockholder actions. As a result, the holders
of a majority of our capital stock may not be able to amend the
amended and restated bylaws or remove directors without holding a
meeting of stockholders called in accordance with the amended and
restated bylaws.
In addition, the amended and restated bylaws provide that special
meetings of the stockholders may be called only by the chairperson
of the board of directors, the chief executive officer, the
president, or a majority of our board of directors (measured based
on the total authorized directorships, including any vacancies or
unfilled seats). A stockholder may not call a special meeting,
which may delay the ability of the stockholders to force
consideration of a proposal or for holders controlling a majority
of our capital stock to take any action, including the removal of
directors.
Requirements for Advance Notification of Stockholder Nominations
and Proposals.
The amended and restated bylaws establish advance notice procedures
with respect to stockholder proposals and the nomination of
candidates for election as directors, other than nominations made
by or at the direction of our board of directors or a committee of
our board of directors. These advance notice procedures may have
the effect of precluding the conduct of certain business at a
meeting if the proper procedures are not followed and may also
discourage or deter a potential acquirer
from conducting a solicitation of proxies to elect its own slate of
directors or otherwise attempt to obtain control of
ESS.
Board Classification.
The certificate of incorporation provides that our board of
directors is divided into three classes, one class of which is
elected each year by the stockholders. The directors in each class
will serve for a three-year term. The classified board of directors
may tend to discourage a third party from making a tender offer or
otherwise attempting to obtain control of ESS because it generally
makes it more difficult for stockholders to replace a majority of
the directors.
Election and Removal of Directors.
The certificate of incorporation contains provisions that establish
specific procedures for appointing and removing members of our
board of directors. Under the certificate of incorporation and
amended and restated bylaws, vacancies and newly created
directorships on our board of directors may be filled only by a
majority of the directors then serving on our board of directors.
Under the certificate of incorporation, directors may be removed
only for cause by the affirmative vote of the holders of at least a
majority of the voting power of the issued and outstanding capital
stock of the Company entitled to vote in the election of
directors.
No Cumulative Voting.
The DGCL provides that stockholders are not entitled to the right
to cumulate votes in the election of directors unless a
corporation’s certificate of incorporation provides otherwise. The
certificate of incorporation and amended and restated bylaws do not
expressly provide for cumulative voting. Without cumulative voting,
a minority stockholder may not be able to gain as many seats on the
board of directors as the stockholder would be able to gain if
cumulative voting were permitted. The absence of cumulative voting
makes it more difficult for a minority stockholder to gain a seat
on the board of directors to, among other things, influence the
board of directors’ decision regarding a takeover.
Amendment of Charter Provision.
Any amendment of the above provisions in the certificate of
incorporation or amended and restated bylaws would require approval
by holders of at least 662/3% of the then outstanding capital stock
entitled to vote, voting together as a single class.
Delaware Anti-Takeover Statute.
ESS is subject to the provisions of Section 203 of the DGCL
regulating corporate takeovers. In general, Section 203 prohibits a
publicly held Delaware corporation from engaging, under certain
circumstances, in a business combination with an interested
stockholder for a period of three years following the date the
person became an interested stockholder unless:
•prior
to the date of the transaction, the board of directors approved
either the business combination or the transaction that resulted in
the stockholder becoming an interested stockholder;
•upon
completion of the transaction that resulted in the stockholder
becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced, excluding for
purposes of determining the voting stock outstanding, but not the
outstanding voting stock owned by the interested stockholder, (1)
shares owned by persons who are directors and also officers and (2)
shares owned by employee stock plans in which employee participants
do not have the right to determine confidentially whether shares
held subject to the plan will be tendered in a tender or exchange
offer; or
•at
or subsequent to the date of the transaction, the business
combination is approved by the board of directors and authorized at
an annual or special meeting of stockholders, and not by written
consent, by the affirmative vote of at least 66 2/3% of the
outstanding voting stock that is not owned by the interested
stockholder.
Generally, a business combination includes a merger, asset or stock
sale or other transaction resulting in a financial benefit to the
interested stockholder. An interested stockholder is generally
defined under Section 203 to be a person who, together with
affiliates and associates, owns or, within three years prior to the
determination of interested stockholder status, did own 15% or more
of a corporation’s outstanding voting stock. ESS expects the
existence of this provision to have an anti-takeover effect with
respect to transactions our board of directors does not approve in
advance. We also anticipate that Section 203 may discourage
attempts that might result in a premium over the market price for
the shares of common stock held by stockholders.
The provisions of Delaware law and the provisions of the
certificate of incorporation and amended and restated bylaws could
have the effect of discouraging others from attempting hostile
takeovers and as a consequence, they might also inhibit temporary
fluctuations in the market price of our common stock that often
result from actual or rumored hostile takeover attempts. These
provisions might also have the effect of preventing changes in
management. It is also possible that these provisions could make it
more difficult to accomplish transactions that stockholders might
otherwise deem to be in their best interests.
Choice of Forum.
The amended and restated bylaws provides that the Court of Chancery
of the State of Delaware will be the exclusive forum for: (i) any
derivative action or proceeding brought on ESS’ behalf; (ii)
actions asserting a breach of fiduciary duty; (iii) any action
arising under the DGCL, the certificate of incorporation or amended
and restated bylaws; and (iv) any action asserting a claim against
ESS that is governed by the internal-affairs doctrine. The amended
and restated bylaws further provide that the federal district
courts of the United States will be the exclusive forum for
resolving any complaint asserting a cause of action arising under
the Securities Act.
Transfer Agent and Warrant Agent
The transfer agent and warrant agent for the common stock and
warrants is Computershare Inc. The transfer agent’s address is 150
Royall Street, Canton, MA 02021 and its telephone number is (206)
406-5789.
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional information
we include in any applicable prospectus supplement, summarizes
certain general terms and provisions of the debt securities that we
may offer under this prospectus. When we offer to sell a particular
series of debt securities, we will describe the specific terms of
the series in a supplement to this prospectus. We will also
indicate in the supplement to what extent the general terms and
provisions described in this prospectus apply to a particular
series of debt securities.
We may issue debt securities either separately, or together with,
or upon the conversion or exercise of or in exchange for, other
securities described in this prospectus. Debt securities may be our
senior, senior subordinated or subordinated obligations and, unless
otherwise specified in a supplement to this prospectus, the debt
securities will be our direct, unsecured obligations and may be
issued in one or more series.
The debt securities will be issued under an indenture between us
and a trustee to be identified in an accompanying prospectus
supplement. We have summarized select portions of the indenture
below. The summary is not complete. The form of the indenture has
been filed as an exhibit to the registration statement of which
this prospectus forms a part and you should read the indenture for
provisions that may be important to you. In the summary below, we
have included references to the section numbers of the indenture so
that you can easily locate these provisions. Capitalized terms used
in the summary and not defined herein have the meanings specified
in the indenture.
General
The terms of each series of debt securities will be established by
or pursuant to a resolution of our board of directors and set forth
or determined in the manner provided in a resolution of our board
of directors, in an officer’s certificate or by a supplemental
indenture. The particular terms of each series of debt securities
will be described in a prospectus supplement relating to such
series (including any pricing supplement or term
sheet).
We can issue an unlimited amount of debt securities under the
indenture that may be in one or more series with the same or
various maturities, at par, at a premium, or at a discount. We will
set forth in a prospectus supplement (including any pricing
supplement or term sheet) relating to any series of debt securities
being offered the aggregate principal amount and the following
terms of the debt securities, if applicable:
•the
title and ranking of the debt securities (including the terms of
any subordination provisions);
•the
price or prices (expressed as a percentage of the principal amount)
at which we will sell the debt securities;
•any
limit upon the aggregate principal amount of the debt
securities;
•the
date or dates on which the principal of the securities of the
series is payable;
•the
rate or rates (which may be fixed or variable) per annum or the
method used to determine the rate or rates (including any
commodity, commodity index, stock exchange index or financial
index) at which the debt securities will bear interest, the date or
dates from which interest will accrue, the date or dates on which
interest will commence and be payable and any regular record date
for the interest payable on any interest payment date;
•the
place or places where principal of, and interest, if any, on the
debt securities will be payable (and the method of such payment),
where the securities of such series may be surrendered for
registration of transfer or exchange, and where notices and demands
to us in respect of the debt securities may be
delivered;
•the
period or periods within which, the price or prices at which and
the terms and conditions upon which we may redeem the debt
securities;
•any
obligation we have to redeem or purchase the debt securities
pursuant to any sinking fund or analogous provisions or at the
option of a holder of debt securities and the period or periods
within which, the price or
prices at which and the terms and conditions upon which securities
of the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
•the
dates on which and the price or prices at which we will repurchase
debt securities at the option of the holders of debt securities and
other detailed terms and provisions of these repurchase
obligations;
•the
denominations in which the debt securities will be issued, if other
than denominations of $1,000 and any integral multiple
thereof;
•whether
the debt securities will be issued in the form of certificated debt
securities or global debt securities;
•the
portion of principal amount of the debt securities payable upon
declaration of acceleration of the maturity date, if other than the
principal amount;
•the
currency of denomination of the debt securities, which may be
United States dollars or any foreign currency, and if such currency
of denomination is a composite currency, the agency or
organization, if any, responsible for overseeing such composite
currency;
•the
designation of the currency, currencies or currency units in which
payment of principal of, premium and interest on the debt
securities will be made;
•if
payments of principal of, premium or interest on the debt
securities will be made in one or more currencies or currency units
other than that or those in which the debt securities are
denominated, the manner in which the exchange rate with respect to
these payments will be determined;
•the
manner in which the amounts of payment of principal of, premium, if
any, or interest on the debt securities will be determined, if
these amounts may be determined by reference to an index based on a
currency or currencies or by reference to a commodity, commodity
index, stock exchange index or financial index;
•any
provisions relating to any security provided for the debt
securities;
•any
addition to, deletion of or change in the Events of Default
described in this prospectus or in the indenture with respect to
the debt securities and any change in the acceleration provisions
described in this prospectus or in the indenture with respect to
the debt securities;
•any
addition to, deletion of or change in the covenants described in
this prospectus or in the indenture with respect to the debt
securities;
•any
depositaries, interest rate calculation agents, exchange rate
calculation agents or other agents with respect to the debt
securities;
•any
other terms of the debt securities, which may supplement, modify or
delete any provision of the indenture as it applies to that series,
including any terms that may be required under applicable law or
regulations or advisable in connection with the marketing of the
securities; and
•whether
any of our direct or indirect subsidiaries will guarantee the debt
securities of that series, including the terms of subordination, if
any, of such guarantees.
We may issue debt securities that provide for an amount less than
their stated principal amount to be due and payable upon
declaration of acceleration of their maturity pursuant to the terms
of the indenture. We will provide you with information on the
federal income tax considerations and other special considerations
applicable to any of these debt securities in the applicable
prospectus supplement.
If we denominate the purchase price of any of the debt securities
in a foreign currency or currencies or a foreign currency unit or
units, or if the principal of and any premium and interest on any
series of debt securities is payable in a foreign currency or
currencies or a foreign currency unit or units, we will provide you
with information on the restrictions, elections, general tax
considerations, specific terms and other information with respect
to that issue of
debt securities and such foreign currency or currencies or foreign
currency unit or units in the applicable prospectus
supplement.
Transfer and Exchange
Each debt security will be represented by either one or more global
securities registered in the name of a clearing agency registered
under the Exchange Act, which we refer to as the depositary, or a
nominee of the depositary (we will refer to any debt security
represented by a global debt security as a “book-entry debt
security”), or a certificate issued in definitive registered form
(we will refer to any debt security represented by a certificated
security as a “certificated debt security”) as set forth in the
applicable prospectus supplement. Except as set forth under the
heading “—Global
Debt Securities and Book-Entry System”
below, book-entry debt securities will not be issuable in
certificated form.
Certificated Debt Securities
You may transfer or exchange certificated debt securities at any
office we maintain for this purpose in accordance with the terms of
the indenture. No service charge will be made for any transfer or
exchange of certificated debt securities, but we may require
payment of a sum sufficient to cover any tax or other governmental
charge payable in connection with a transfer or
exchange.
You may effect the transfer of certificated debt securities and the
right to receive the principal of, premium and interest on
certificated debt securities only by surrendering the certificate
representing those certificated debt securities and either
reissuance by us or the trustee of the certificate to the new
holder or the issuance by us or the trustee of a new certificate to
the new holder.
Global Debt Securities and Book-Entry System
Each global debt security representing book-entry debt securities
will be deposited with, or on behalf of, the depositary, and
registered in the name of the depositary or a nominee of the
depositary.
Covenants
We will set forth in the applicable prospectus supplement any
restrictive covenants applicable to any issue of debt
securities.
No Protection in the Event of a Change of Control
Unless we state otherwise in the applicable prospectus supplement,
the debt securities will not contain any provisions which may
afford holders of the debt securities protection in the event we
have a change in control or in the event of a highly leveraged
transaction (whether or not such transaction results in a change in
control) which could adversely affect holders of debt
securities.
Conversion or Exchange Rights
For any series of debt securities that are convertible into or
exchangeable for shares of our common stock, we will set forth in
the applicable prospectus supplement the terms on which such series
of debt securities may be convertible into or exchangeable for our
common stock. We will include provisions as to settlement upon
conversion or exchange and whether conversion or exchange is
mandatory, at the option of the holder or at our option. We may
include provisions pursuant to which the number of shares of our
common stock that the holders of the series of debt securities
receive would be subject to adjustment.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge with or into, or convey,
transfer or lease all or substantially all of our properties and
assets to any person, which we refer to as a successor person,
unless:
•we
are the surviving corporation or the successor person (if other
than us) is a corporation organized and validly existing under the
laws of any U.S. domestic jurisdiction and expressly assumes our
obligations on the debt securities and under the indenture;
and
•immediately
after giving effect to the transaction, no Default or Event of
Default, shall have occurred and be continuing.
Notwithstanding the above, any of our subsidiaries may consolidate
with, merge into or transfer all or part of its properties to
us.
Events of Default
“Event of Default” means with respect to any series of debt
securities, any of the following:
•default
in the payment of any interest upon any debt security of that
series when it becomes due and payable, and continuance of such
default for a period of 30 days (unless the entire amount of the
payment is deposited by us with the trustee or with a paying agent
prior to the expiration of the 30-day period);
•default
in the payment of principal of any security of that series at its
maturity;
•default
in the performance or breach of any other covenant or warranty by
us in the indenture (other than a covenant or warranty that has
been included in the indenture solely for the benefit of a series
of debt securities other than that series), which default continues
uncured for a period of 60 days after we receive written notice
from the trustee, or we and the trustee receive written notice from
the holders of not less than 25% in principal amount of the
outstanding debt securities of that series as provided in the
indenture;
•certain
voluntary or involuntary events of bankruptcy, insolvency or
reorganization of us; and
•any
other Event of Default provided with respect to debt securities of
that series that is described in the applicable prospectus
supplement.
No Event of Default with respect to a particular series of debt
securities (except as to certain events of bankruptcy, insolvency
or reorganization) necessarily constitutes an Event of Default with
respect to any other series of debt securities. The occurrence of
certain Events of Default or an acceleration under the indenture
may constitute an event of default under certain indebtedness of
ours or our subsidiaries outstanding from time to
time.
We will provide the trustee written notice of any Default or Event
of Default within 30 days of becoming aware of the occurrence of
such Default or Event of Default, which notice will describe in
reasonable detail the status of such Default or Event of Default
and what action we are taking or propose to take in respect
thereof.
If an Event of Default with respect to debt securities of any
series at the time outstanding occurs and is continuing, then the
trustee or the holders of not less than 25% in principal amount of
the outstanding debt securities of that series may, by a notice in
writing to us (and to the trustee if given by the holders), declare
to be due and payable immediately the principal of (or, if the debt
securities of that series are discount securities, that portion of
the principal amount as may be specified in the terms of that
series) and accrued and unpaid interest, if any, on all debt
securities of that series. In the case of an Event of Default
resulting from certain events of bankruptcy, insolvency or
reorganization, the principal (or such specified amount) of and
accrued and unpaid interest, if any, on all outstanding debt
securities will become and be immediately due and payable without
any declaration or other act on the part of the trustee or any
holder of outstanding debt securities. At any time after a
declaration of acceleration with respect to debt securities of any
series has been made, but before a judgment or decree for payment
of the money due has been obtained by the trustee, the holders of a
majority in principal amount of the outstanding debt securities of
that series may rescind and annul the acceleration if all Events of
Default, other than the non-payment
of accelerated principal and interest, if any, with respect to debt
securities of that series, have been cured or waived as provided in
the indenture. We refer you to the prospectus supplement relating
to any series of debt securities that are discount securities for
the particular provisions relating to acceleration of a portion of
the principal amount of such discount securities upon the
occurrence of an Event of Default.
The indenture provides that the trustee may refuse to perform any
duty or exercise any of its rights or powers under the indenture
unless the trustee receives indemnity satisfactory to it against
any cost, liability or expense which might be incurred by it in
performing such duty or exercising such right or power. Subject to
certain rights of the trustee, the holders of a majority in
principal amount of the outstanding debt securities of any series
will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the trustee
or exercising any trust or power conferred on the trustee with
respect to the debt securities of that series.
No holder of any debt security of any series will have any right to
institute any proceeding, judicial or otherwise, with respect to
the indenture or for the appointment of a receiver or trustee, or
for any remedy under the indenture, unless:
•that
holder has previously given to the trustee written notice of a
continuing Event of Default with respect to debt securities of that
series; and
•the
holders of not less than 25% in principal amount of the outstanding
debt securities of that series have made written request, and
offered indemnity or security satisfactory to the trustee, to the
trustee to institute the proceeding as trustee, and the trustee has
not received from the holders of not less than a majority in
principal amount of the outstanding debt securities of that series
a direction inconsistent with that request and has failed to
institute the proceeding within 60 days.
Notwithstanding any other provision in the indenture, the holder of
any debt security will have an absolute and unconditional right to
receive payment of the principal of, premium and any interest on
that debt security on or after the due dates expressed in that debt
security and to institute suit for the enforcement of
payment.
The indenture requires us, within 120 days after the end of our
fiscal year, to furnish to the trustee a statement as to compliance
with the indenture. If a Default or Event of Default occurs and is
continuing with respect to the securities of any series and if it
is known to a responsible officer of the trustee, the trustee shall
send to each securityholder of the securities of that series notice
of a Default or Event of Default within 90 days after it occurs or,
if later, after a responsible officer of the trustee has knowledge
of such Default or Event of Default. The indenture provides that
the trustee may withhold notice to the holders of debt securities
of any series of any Default or Event of Default (except in payment
on any debt securities of that series) with respect to debt
securities of that series if the trustee determines in good faith
that withholding notice is in the interest of the holders of those
debt securities.
Modification and Waiver
We and the trustee may modify, amend or supplement the indenture or
the debt securities of any series without the consent of any holder
of any debt security:
•to
cure any ambiguity, defect or inconsistency;
•to
comply with covenants in the indenture described above under the
heading “—Consolidation,
Merger and Sale of Assets”;
•to
provide for uncertificated securities in addition to or in place of
certificated securities;
•to
add guarantees with respect to debt securities of any series or
secure debt securities of any series;
•to
surrender any of our rights or powers under the
indenture;
•to
add covenants or events of default for the benefit of the holders
of debt securities of any series;
•to
comply with the applicable procedures of the applicable
depositary;
•to
make any change that does not adversely affect the rights of any
holder of debt securities;
•to
provide for the issuance of and establish the form and terms and
conditions of debt securities of any series as permitted by the
indenture;
•to
effect the appointment of a successor trustee with respect to the
debt securities of any series and to add to or change any of the
provisions of the indenture to provide for or facilitate
administration by more than one trustee; or
•to
comply with requirements of the SEC in order to effect or maintain
the qualification of the indenture under the Trust Indenture
Act.
We may also modify and amend the indenture with the consent of the
holders of at least a majority in principal amount of the
outstanding debt securities of each series affected by the
modifications or amendments. We may not make any modification or
amendment without the consent of the holders of each affected debt
security then outstanding if that amendment will:
•reduce
the amount of debt securities whose holders must consent to an
amendment, supplement or waiver;
•reduce
the rate of or extend the time for payment of interest (including
default interest) on any debt security;
•reduce
the principal of or premium on or change the fixed maturity of any
debt security or reduce the amount of, or postpone the date fixed
for, the payment of any sinking fund or analogous obligation with
respect to any series of debt securities;
•reduce
the principal amount of discount securities payable upon
acceleration of maturity;
•waive
a default in the payment of the principal of, premium or interest
on any debt security (except a rescission of acceleration of the
debt securities of any series by the holders of at least a majority
in aggregate principal amount of the then outstanding debt
securities of that series and a waiver of the payment default that
resulted from such acceleration);
•make
the principal of or premium or interest on any debt security
payable in currency other than that stated in the debt
security;
•make
any change to certain provisions of the indenture relating to,
among other things, the right of holders of debt securities to
receive payment of the principal of, premium and interest on those
debt securities and to institute suit for the enforcement of any
such payment and to waivers or amendments; or
•waive
a redemption payment with respect to any debt
security.
Except for certain specified provisions, the holders of at least a
majority in principal amount of the outstanding debt securities of
any series may on behalf of the holders of all debt securities of
that series waive our compliance with provisions of the indenture.
The holders of a majority in principal amount of the outstanding
debt securities of any series may on behalf of the holders of all
the debt securities of such series waive any past default under the
indenture with respect to that series and its consequences, except
a default in the payment of the principal of, premium or any
interest on any debt security of that series; provided, however,
that the holders of a majority in principal amount of the
outstanding debt securities of any series may rescind an
acceleration and its consequences, including any related payment
default that resulted from the acceleration.
Defeasance of Debt Securities and Certain Covenants in Certain
Circumstances
Legal Defeasance
The indenture provides that, unless otherwise provided by the terms
of the applicable series of debt securities, we may be discharged
from any and all obligations in respect of the debt securities of
any series (subject to certain exceptions). We will be so
discharged upon the irrevocable deposit with the trustee, in trust,
of money and/or U.S.
government obligations or, in the case of debt securities
denominated in a single currency other than U.S. dollars,
government obligations of the government that issued or caused to
be issued such currency, that, through the payment of interest and
principal in accordance with their terms, will provide money or
U.S. government obligations in an amount sufficient in the opinion
of a nationally recognized firm of independent public accountants
or investment bank to pay and discharge each installment of
principal, premium and interest on and any mandatory sinking fund
payments in respect of the debt securities of that series on the
stated maturity of those payments in accordance with the terms of
the indenture and those debt securities.
This discharge may occur only if, among other things, we have
delivered to the trustee an opinion of counsel stating that we have
received from, or there has been published by, the United States
Internal Revenue Service a ruling or, since the date of execution
of the indenture, there has been a change in the applicable United
States federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the holders of
the debt securities of that series will not recognize income, gain
or loss for United States federal income tax purposes as a result
of the deposit, defeasance and discharge and will be subject to
United States federal income tax on the same amounts and in the
same manner and at the same times as would have been the case if
the deposit, defeasance and discharge had not
occurred.
Defeasance of Certain Covenants
The indenture provides that, unless otherwise provided by the terms
of the applicable series of debt securities, upon compliance with
certain conditions:
•we
may omit to comply with the covenant described under the heading
“—Consolidation,
Merger and Sale of Assets”
and certain other covenants set forth in the indenture, as well as
any additional covenants which may be set forth in the applicable
prospectus supplement; and
•any
omission to comply with those covenants will not constitute a
Default or an Event of Default with respect to the debt securities
of that series.
We refer to this as covenant defeasance. The conditions
include:
•depositing
with the trustee money and/or U.S. government obligations or, in
the case of debt securities denominated in a single currency other
than U.S. dollars, government obligations of the government that
issued or caused to be issued such currency, that, through the
payment of interest and principal in accordance with their terms,
will provide money in an amount sufficient in the opinion of a
nationally recognized firm of independent public accountants or
investment bank to pay and discharge each installment of principal
of, premium and interest on and any mandatory sinking fund payments
in respect of the debt securities of that series on the stated
maturity of those payments in accordance with the terms of the
indenture and those debt securities;
•such
deposit will not result in a breach or violation of, or constitute
a default under the indenture or any other agreement to which we
are a party;
•no
Default or Event of Default with respect to the applicable series
of debt securities shall have occurred or is continuing on the date
of such deposit; and
•delivering
to the trustee an opinion of counsel to the effect that we have
received from, or there has been published by, the United States
Internal Revenue Service a ruling or, since the date of execution
of the indenture, there has been a change in the applicable United
States federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the holders of
the debt securities of that series will not recognize income, gain
or loss for United States federal income tax purposes as a result
of the deposit and related covenant defeasance and will be subject
to United States federal income tax on the same amounts and in the
same manner and at the same times as would have been the case if
the deposit and related covenant defeasance had not
occurred.
No Personal Liability of Directors, Officers, Employees or
Stockholders
None of our past, present or future directors, officers, employees
or stockholders, as such, will have any liability for any of our
obligations under the debt securities or the indenture or for any
claim based on, or in respect or by reason of, such obligations or
their creation. By accepting a debt security, each holder waives
and releases all such liability. This waiver and release is part of
the consideration for the issue of the debt securities. However,
this waiver and release may not be effective to waive liabilities
under U.S. federal securities laws, and it is the view of the SEC
that such a waiver is against public policy.
Governing Law
The indenture and the debt securities, including any claim or
controversy arising out of or relating to the indenture or the
securities, will be governed by the laws of the State of New
York.
The indenture will provide that we, the trustee and the holders of
the debt securities (by their acceptance of the debt securities)
irrevocably waive, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any legal proceeding
arising out of or relating to the indenture, the debt securities or
the transactions contemplated thereby.
The indenture will provide that any legal suit, action or
proceeding arising out of or based upon the indenture or the
transactions contemplated thereby may be instituted in the federal
courts of the United States of America located in the City of New
York or the courts of the State of New York in each case located in
the City of New York, and we, the trustee and the holder of the
debt securities (by their acceptance of the debt securities)
irrevocably submit to the non-exclusive jurisdiction of such courts
in any such suit, action or proceeding. The indenture will further
provide that service of any process, summons, notice or document by
mail (to the extent allowed under any applicable statute or rule of
court) to such party’s address set forth in the indenture will be
effective service of process for any suit, action or other
proceeding brought in any such court. The indenture will further
provide that we, the trustee and the holders of the debt securities
(by their acceptance of the debt securities) irrevocably and
unconditionally waive any objection to the laying of venue of any
suit, action or other proceeding in the courts specified above and
irrevocably and unconditionally waive and agree not to plead or
claim any such suit, action or other proceeding has been brought in
an inconvenient forum.
DESCRIPTION OF DEPOSITARY SHARES
General
We may, at our option, elect to offer fractional shares of
preferred stock, or depositary shares, rather than full shares of
preferred stock. If we do, we will issue to the public receipts,
called depositary receipts, for depositary shares, each of which
will represent a fraction, to be described in the applicable
prospectus supplement, of a share of a particular series of
preferred stock. Unless otherwise provided in the prospectus
supplement, each owner of a depositary share will be entitled, in
proportion to the applicable fractional interest in a share of
preferred stock represented by the depositary share, to all the
rights and preferences of the preferred stock represented by the
depositary share. Those rights include dividend, voting,
redemption, conversion and liquidation rights.
The shares of preferred stock underlying the depositary shares will
be deposited with a bank or trust company selected by us to act as
depositary under a deposit agreement between us, the depositary and
the holders of the depositary receipts. The depositary will be the
transfer agent, registrar and dividend disbursing agent for the
depositary shares.
The depositary shares will be evidenced by depositary receipts
issued pursuant to the depositary agreement. Holders of depositary
receipts agree to be bound by the deposit agreement, which requires
holders to take certain actions such as filing proof of residence
and paying certain charges.
The summary of terms of the depositary shares contained in this
prospectus is not complete. You should refer to the form of the
deposit agreement, our certificate of incorporation and the
certificate of designation for the applicable series of preferred
stock that are, or will be, filed with the SEC.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other cash
distributions, if any, received in respect of the preferred stock
underlying the depositary shares to the record holders of
depositary shares in proportion to the numbers of depositary shares
owned by those holders on the relevant record date. The relevant
record date for depositary shares will be the same date as the
record date for the underlying preferred stock.
If there is a distribution other than in cash, the depositary will
distribute property (including securities) received by it to the
record holders of depositary shares, unless the depositary
determines that it is not feasible to make the distribution. If
this occurs, the depositary may, with our approval, adopt another
method for the distribution, including selling the property and
distributing the net proceeds from the sale to the
holders.
Liquidation Preference
If a series of preferred stock underlying the depositary shares has
a liquidation preference, in the event of the voluntary or
involuntary liquidation, dissolution or winding up of us, holders
of depositary shares will be entitled to receive the fraction of
the liquidation preference accorded each share of the applicable
series of preferred stock, as set forth in the applicable
prospectus supplement.
Withdrawal of Stock
Unless the related depositary shares have been previously called
for redemption, upon surrender of the depositary receipts at the
office of the depositary, the holder of the depositary shares will
be entitled to delivery, at the office of the depositary to or upon
his or her order, of the number of whole shares of the preferred
stock and any money or other property represented by the depositary
shares. If the depositary receipts delivered by the holder evidence
a number of depositary shares in excess of the number of depositary
shares representing the number of whole shares of preferred stock
to be withdrawn, the depositary will deliver to the holder at the
same time a new depositary receipt evidencing the excess number of
depositary shares. In no event will the depositary deliver
fractional shares of preferred stock upon surrender of depositary
receipts. Holders of preferred stock thus withdrawn may not
thereafter deposit those shares under the deposit agreement or
receive depositary receipts evidencing depositary shares
therefor.
Redemption of Depositary Shares
Whenever we redeem shares of preferred stock held by the
depositary, the depositary will redeem as of the same redemption
date the number of depositary shares representing shares of the
preferred stock so redeemed, so long as we have paid in full to the
depositary the redemption price of the preferred stock to be
redeemed plus an amount equal to any accumulated and unpaid
dividends on the preferred stock to the date fixed for redemption.
The redemption price per depositary share will be equal to the
redemption price and any other amounts per share payable on the
preferred stock multiplied by the fraction of a share of preferred
stock represented by one depositary share. If less than all the
depositary shares are to be redeemed, the depositary shares to be
redeemed will be selected by lot or pro rata or by any other
equitable method as may be determined by the
depositary.
After the date fixed for redemption, depositary shares called for
redemption will no longer be deemed to be outstanding and all
rights of the holders of depositary shares will cease, except the
right to receive the monies payable upon redemption and any money
or other property to which the holders of the depositary shares
were entitled upon redemption upon surrender to the depositary of
the depositary receipts evidencing the depositary
shares.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the
preferred stock are entitled to vote, the depositary will mail the
information contained in the notice of meeting to the record
holders of the depositary receipts relating to that preferred
stock. The record date for the depositary receipts relating to the
preferred stock will be the same date as the record date for the
preferred stock. Each record holder of the depositary shares on the
record date will be entitled to instruct the depositary as to the
exercise of the voting rights pertaining to the number of shares of
preferred stock represented by that holder’s depositary shares. The
depositary will endeavor, insofar as practicable, to vote the
number of shares of preferred stock represented by the depositary
shares in accordance with those instructions, and we will agree to
take all action that may be deemed necessary by the depositary in
order to enable the depositary to do so. The depositary will not
vote any shares of preferred stock except to the extent that it
receives specific instructions from the holders of depositary
shares representing that number of shares of preferred
stock.
Charges of the Depositary
We will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements.
We will pay charges of the depositary in connection with the
initial deposit of the preferred stock and any redemption of the
preferred stock. Holders of depositary receipts will pay transfer,
income and other taxes and governmental charges and such other
charges (including those in connection with the receipt and
distribution of dividends, the sale or exercise of rights, the
withdrawal of the preferred stock and the transferring, splitting
or grouping of depositary receipts) as are expressly provided in
the deposit agreement to be for their accounts. If these charges
have not been paid by the holders of depositary receipts, the
depositary may refuse to transfer depositary shares, withhold
dividends and distributions and sell the depositary shares
evidenced by the depositary receipt.
Amendment and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary shares and
any provision of the deposit agreement may be amended by agreement
between us and the depositary. However, any amendment that
materially and adversely alters the rights of the holders of
depositary shares, other than fee changes, will not be effective
unless the amendment has been approved by the holders of a majority
of the outstanding depositary shares. The deposit agreement may be
terminated by the depositary or us only if:
•all
outstanding depositary shares have been redeemed; or
•there
has been a final distribution of the preferred stock in connection
with our dissolution and such distribution has been made to all the
holders of depositary shares.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering to us notice of
its election to do so, and we may remove the depositary at any
time. Any resignation or removal of the depositary will take effect
upon our appointment of a successor depositary and its acceptance
of such appointment. The successor depositary must be appointed
within 60 days after delivery of the notice of resignation or
removal and must be a bank or trust company having its principal
office in the United States and having the requisite combined
capital and surplus as set forth in the applicable
agreement.
Notices
The depositary will forward to holders of depositary receipts all
notices, reports and other communications, including proxy
solicitation materials received from us, that are delivered to the
depositary and that we are required to furnish to the holders of
the preferred stock. In addition, the depositary will make
available for inspection by holders of depositary receipts at the
principal office of the depositary, and at such other places as it
may from time to time deem advisable, any reports and
communications we deliver to the depositary as the holder of
preferred stock.
Limitation of Liability
Neither we nor the depositary will be liable if either is prevented
or delayed by law or any circumstance beyond its control in
performing its obligations. Our obligations and those of the
depositary will be limited to performance in good faith of our and
its duties thereunder. We and the depositary will not be obligated
to prosecute or defend any legal proceeding in respect of any
depositary shares or preferred stock unless satisfactory indemnity
is furnished. We and the depositary may rely upon written advice of
counsel or accountants, on information provided by persons
presenting preferred stock for deposit, holders of depositary
receipts or other persons believed to be competent to give such
information and on documents believed to be genuine and to have
been signed or presented by the proper party or
parties.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase
debt securities, preferred stock, depositary shares or common
stock.
We may offer warrants separately or together with one or more
additional warrants,
debt securities, preferred stock, depositary shares or common
stock,
or any combination of those securities in the form of units, as
described in the applicable prospectus supplement. If we issue
warrants as part of a unit, the applicable prospectus supplement
will specify whether those warrants may be separated from the other
securities in the unit prior to the expiration date of the
warrants. The applicable prospectus supplement will also describe
the following terms of any warrants:
•the
specific designation and aggregate number of, and the offering
price at which we will issue, the warrants;
•the
currency or currency units in which the offering price, if any, and
the exercise price are payable;
•the
date on which the right to exercise the warrants will begin and the
date on which that right will expire or, if you may not
continuously exercise the warrants throughout that period, the
specific date or dates on which you may exercise the
warrants;
•whether
the warrants are to be sold separately or with other securities as
parts of units;
•whether
the warrants will be issued in definitive or global form or in any
combination of these forms, although, in any case, the form of a
warrant included in a unit will correspond to the form of the unit
and of any security included in that unit;
•any
applicable material U.S. federal income tax
consequences;
•the
identity of the warrant agent for the warrants and of any other
depositaries, execution or paying agents, transfer agents,
registrars or other agents;
•the
proposed listing, if any, of the warrants or any securities
purchasable upon exercise of the warrants on any securities
exchange;
•the
designation and terms of any equity securities purchasable upon
exercise of the warrants;
•the
designation, aggregate principal amount, currency and terms of any
debt securities that may be purchased upon exercise of the
warrants;
•if
applicable, the designation and terms of the debt securities,
preferred stock, depositary shares or common stock with which the
warrants are issued and the number of warrants issued with each
security;
•if
applicable, the date from and after which any warrants issued as
part of a unit and the related debt securities, preferred stock,
depositary shares or common stock will be separately
transferable;
•the
number of shares of preferred stock, the number of depositary
shares or the number of shares of common stock purchasable upon
exercise of a warrant and the price at which those shares may be
purchased;
•if
applicable, the minimum or maximum amount of the warrants that may
be exercised at any one time;
•information
with respect to book-entry procedures, if any;
•the
antidilution provisions, and other provisions for changes to or
adjustment in the exercise price, of the warrants, if
any;
•any
redemption or call provisions; and
•any
additional terms of the warrants, including terms, procedures and
limitations relating to the exchange or exercise of the
warrants.
DESCRIPTION OF SUBSCRIPTION RIGHTS
We may issue subscription rights to purchase our
common stock, preferred stock, debt securities, depositary shares,
warrants or units consisting of some or all of these
securities.
These subscription rights may be offered independently or together
with any other security offered hereby and may or may not be
transferable by the stockholder receiving the subscription rights
in such offering. In connection with any offering of subscription
rights, we may enter into a standby arrangement with one or more
underwriters or other purchasers pursuant to which the underwriters
or other purchasers may be required to purchase any securities
remaining unsubscribed for after such offering.
The prospectus supplement relating to any subscription rights we
offer, if any, will, to the extent applicable, include specific
terms relating to the offering, including some or all of the
following:
•the
price, if any, for the subscription rights;
•the
exercise price payable for our common stock, preferred stock, debt
securities, depositary shares, warrants or units consisting of some
or all of these securities upon the exercise of the subscription
rights;
•the
number of subscription rights to be issued to each
stockholder;
•the
number and terms of our common stock, preferred stock, debt
securities, depositary shares, warrants or units consisting of some
or all of these securities which may be purchased per each
subscription right;
•the
extent to which the subscription rights are
transferable;
•any
other terms of the subscription rights, including the terms,
procedures and limitations relating to the exchange and exercise of
the subscription rights;
•the
date on which the right to exercise the subscription rights shall
commence, and the date on which the subscription rights shall
expire;
•the
extent to which the subscription rights may include an
over-subscription privilege with respect to unsubscribed securities
or an over-allotment privilege to the extent the securities are
fully subscribed; and
•if
applicable, the material terms of any standby underwriting or
purchase arrangement which may be entered into by us in connection
with the offering of subscription rights.
The descriptions of the subscription rights in this prospectus and
in any prospectus supplement are summaries of the material
provisions of the applicable subscription right agreements. These
descriptions do not restate those subscription right agreements in
their entirety and may not contain all the information that you may
find useful. We urge you to read the applicable subscription right
agreements because they, and not the summaries, define your rights
as holders of the subscription rights. For more information, please
review the forms of the relevant subscription right agreements,
which will be filed with the SEC promptly after the offering of
subscription rights and will be available as described in the
section of this prospectus under the heading “Where
You Can Find More Information.”
DESCRIPTION OF PURCHASE CONTRACTS
The following description summarizes the general features of the
purchase contracts that we may offer under this prospectus.
Although the features we have summarized below will generally apply
to any future purchase contracts we may offer under this
prospectus, we will describe the particular terms of any purchase
contracts that we may offer in more detail in the applicable
prospectus supplement. The specific terms of any purchase contracts
may differ from the description provided below as a result of
negotiations with third parties in connection with the issuance of
those purchase contracts, as well as for other reasons. Because the
terms of any purchase contracts we offer under a prospectus
supplement may differ from the terms we describe below, you should
rely solely on information in the applicable prospectus supplement
if that summary is different from the summary in this
prospectus.
We will incorporate by reference into the registration statement of
which this prospectus is a part the form of any purchase contract
that we may offer under this prospectus before the sale of the
related purchase contract. We urge you to read any applicable
prospectus supplement related to specific purchase contracts being
offered, as well as the complete instruments that contain the terms
of the securities that are subject to those purchase contracts.
Certain of those instruments, or forms of those instruments, have
been filed as exhibits to the registration statement of which this
prospectus is a part, and supplements to those instruments or forms
may be incorporated by reference into the registration statement of
which this prospectus is a part from reports we file with the
SEC.
We may issue purchase contracts, including contracts obligating
holders to purchase from us, and for us to sell to holders, a
specific or variable number of our securities at a future date or
dates. Alternatively, the purchase contracts may obligate us to
purchase from holders, and obligate holders to sell to us, a
specific or varying number of our securities.
If we offer any purchase contracts, certain terms of that series of
purchase contracts will be described in the applicable prospectus
supplement, including, without limitation, the
following:
•the
price of the securities or other property subject to the purchase
contracts (which may be determined by reference to a specific
formula described in the purchase contracts);
•whether
the purchase contracts are issued separately, or as a part of units
each consisting of a purchase contract and one or more of our other
securities, including U.S. Treasury securities, securing the
holder’s obligations under the purchase contract;
•any
requirement for us to make periodic payments to holders or vice
versa, and whether the payments are unsecured or
pre-funded;
•any
provisions relating to any security provided for the purchase
contracts;
•whether
the purchase contracts obligate the holder or us to purchase or
sell, or both purchase and sell, the securities subject to purchase
under the purchase contract, and the nature and amount of each of
those securities, or the method of determining those
amounts;
•whether
the purchase contracts are to be prepaid or not;
•whether
the purchase contracts are to be settled by delivery, or by
reference or linkage to the value, performance or level of the
securities subject to purchase under the purchase
contract;
•any
acceleration, cancellation, termination or other provisions
relating to the settlement of the purchase contracts;
•a
discussion of certain U.S. federal income tax considerations
applicable to the purchase contracts;
•whether
the purchase contracts will be issued in fully registered or global
form; and
•any
other terms of the purchase contracts and any securities subject to
such purchase contracts.
DESCRIPTION OF UNITS
We may issue units comprising two or more securities described in
this prospectus in any combination. For example, we might issue
units consisting of a combination of debt securities and warrants
to purchase common stock. The following description sets forth
certain general terms and provisions of the units that we may offer
pursuant to this prospectus. The particular terms of the units and
the extent, if any, to which the general terms and provisions may
apply to the units so offered will be described in the applicable
prospectus supplement.
Each unit will be issued so that the holder of the unit also is the
holder of each security included in the unit. Thus, the unit will
have the rights and obligations of a holder of each included
security. Units will be issued pursuant to the terms of a unit
agreement, which may provide that the securities included in the
unit may not be held or transferred separately at any time or at
any time before a specified date. A copy of the forms of the unit
agreement and the unit certificate relating to any particular issue
of units will be filed with the SEC each time we issue units, and
you should read those documents for provisions that may be
important to you. For more information on how you can obtain copies
of the forms of the unit agreement and the related unit
certificate, see the section of this prospectus captioned “Where
You Can Find More Information.”
The prospectus supplement relating to any particular issuance of
units will describe the terms of those units, including, to the
extent applicable, the following:
•the
designation and terms of the units and the securities comprising
the units, including whether and under what circumstances those
securities may be held or transferred separately;
•any
provision for the issuance, payment, settlement, transfer or
exchange of the units or of the securities comprising the units;
and
•whether
the units will be issued in fully registered or global
form.
PLAN OF DISTRIBUTION
We may sell securities:
•through
underwriters;
•through
dealers;
•through
agents;
•directly
to purchasers; or
•through
a combination of any of these methods of sale.
In addition, we may issue the securities as a dividend or
distribution or in a subscription rights offering to our existing
securityholders.
We may directly solicit offers to purchase securities or agents may
be designated to solicit such offers. We will, in the prospectus
supplement relating to such offering, name any agent that could be
viewed as an underwriter under the Securities Act and describe any
commissions that we must pay. Any such agent will be acting on a
best efforts basis for the period of its appointment or, if
indicated in the applicable prospectus supplement, on a firm
commitment basis. This prospectus may be used in connection with
any offering of our securities through any of these methods or
other methods described in the applicable prospectus
supplement.
The distribution of the securities may be effected from time to
time in one or more transactions:
•at
a fixed price or prices that may be changed from time to
time;
•at
market prices prevailing at the time of sale;
•at
prices related to such prevailing market prices; or
•at
negotiated prices.
We may also sell equity securities covered by this registration
statement in an “at the market offering” as defined in
Rule 415(a)(4) under the Securities Act. Such offering may be
made into an existing trading market for such securities in
transactions at other than a fixed price, either:
•on
or through the facilities of the New York Stock Exchange or any
other securities exchange or quotation or trading service on which
such securities may be listed, quoted or traded at the time of
sale; and/or
•to
or through a market maker otherwise than on the New York Stock
Exchange or such other securities exchanges or quotation trading
services.
Such at the market offerings, if any, may be conducted by
underwriters acting as principal or agent.
Each prospectus supplement will describe the method of distribution
of the securities and any applicable restrictions.
The prospectus supplement with respect to the securities of a
particular series will describe the terms of the offering of the
securities, including the following:
•the
name of the agent or any underwriters;
•the
public offering or purchase price;
•if
applicable, the names of any selling securityholders;
•any
discounts and commissions to be allowed or paid to the agent or
underwriters;
•all
other items constituting underwriting compensation;
•any
discounts and commissions to be allowed or paid to dealers;
and
•any
exchanges on which the securities will be listed.
If any underwriters or agents are utilized in the sale of the
securities in respect of which this prospectus is delivered, we
will enter into an underwriting agreement or other agreement with
them at the time of sale to them, and we will set forth in the
prospectus supplement relating to such offering the names of the
underwriters or agents and the terms of the related agreement with
them.
If a dealer is utilized in the sale of the securities in respect of
which the prospectus is delivered, we will sell such securities to
the dealer, as principal. The dealer may then resell such
securities to the public at varying prices to be determined by such
dealer at the time of resale.
If we offer securities in a subscription rights offering to our
existing securityholders, we may enter into a standby underwriting
agreement with dealers, acting as standby underwriters. We may pay
the standby underwriters a commitment fee for the securities they
commit to purchase on a standby basis. If we do not enter into a
standby underwriting arrangement, we may retain a dealer-manager to
manage a subscription rights offering for us.
Agents, underwriters, dealers and other persons may be entitled
under agreements that they may enter into with us to
indemnification by us against certain civil liabilities, including
liabilities under the Securities Act.
If so indicated in the applicable prospectus supplement, we will
authorize underwriters or other persons acting as our agents to
solicit offers by certain institutions to purchase securities from
us pursuant to delayed delivery contracts providing for payment and
delivery on the date stated in the prospectus supplement. Each
contract will be for an amount not less than, and the aggregate
amount of securities sold pursuant to such contracts shall not be
less nor more than, the respective amounts stated in the prospectus
supplement. Institutions with whom the contracts, when authorized,
may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and
charitable institutions and other institutions, but shall in all
cases be subject to our approval. Delayed delivery contracts will
not be subject to any conditions except that:
•the
purchase by an institution of the securities covered under that
contract shall not at the time of delivery be prohibited under the
laws of the jurisdiction to which that institution is subject;
and
•if
the securities are also being sold to underwriters acting as
principals for their own account, the underwriters shall have
purchased such securities not sold for delayed
delivery.
The underwriters and other persons acting as agents will not have
any responsibility in respect of the validity or performance of
delayed delivery contracts.
Certain agents, underwriters and dealers, and their associates and
affiliates may be customers of, have borrowing relationships with,
engage in other transactions with, and/or perform services,
including investment banking services, for us or one or more of our
respective affiliates in the ordinary course of
business.
In order to facilitate the offering of the securities, any
underwriters may engage in transactions that stabilize, maintain or
otherwise affect the price of the securities or any other
securities the prices of which may be used to determine payments on
such securities. Specifically, any underwriters may over-allot in
connection with the offering, creating a short position for their
own accounts. In addition, to cover over-allotments or to stabilize
the price of the securities or of any such other securities, the
underwriters may bid for, and purchase, the securities or any such
other securities in the open market. Finally, in any offering of
the securities through a syndicate of underwriters, the
underwriting syndicate may reclaim selling concessions allowed to
an underwriter or a dealer for distributing the securities in the
offering if the syndicate repurchases previously distributed
securities in transactions to cover syndicate short positions, in
stabilization transactions or otherwise. Any of these activities
may stabilize or maintain the market price of the securities above
independent market levels. Any such underwriters are not required
to engage in these activities and may end any of these activities
at any time.
Under Rule 15c6-1 of the Exchange Act, trades in the secondary
market generally are required to settle in two business days,
unless the parties to any such trade expressly agree otherwise. The
applicable prospectus supplement may provide that the original
issue date for your securities may be more than two scheduled
business days after the trade date for your securities.
Accordingly, in such a case, if you wish to trade securities on any
date prior to the third business day before the original issue date
for your securities, you will be required, by virtue of the fact
that your securities initially are expected to settle in more than
three scheduled business days after the trade date for your
securities, to make alternative settlement arrangements to prevent
a failed settlement.
The securities may be new issues of securities and may have no
established trading market. The securities may or may not be listed
on a national securities exchange. We can make no assurance as to
the liquidity of or the existence of trading markets for any of the
securities.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon
for us by Wilson Sonsini Goodrich & Rosati, Professional
Corporation, Palo Alto, California. Additional legal matters may be
passed on for us, or any underwriters, dealers or agents by counsel
we will name in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of ESS Tech, Inc. appearing
in ESS Tech, Inc.’s Annual Report (Form 10-K) for the year ended
December 31, 2021, have been audited by Ernst & Young LLP,
independent registered public accounting firm, as set forth in
their report thereon, included therein, and incorporated herein by
reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such report given on the
authority of such firm as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. Our SEC filings are available to
the public over the Internet at the SEC’s website at www.sec.gov.
Copies of certain information filed by us with the SEC are also
available on our website at https://essinc.com/. Information
accessible on or through our website is not a part of this
prospectus.
This prospectus and any prospectus supplement is part of a
registration statement that we filed with the SEC and do not
contain all of the information in the registration statement. You
should review the information and exhibits in the registration
statement for further information on us and our consolidated
subsidiaries and the securities that we are offering. Forms of any
indenture or other documents establishing the terms of the offered
securities are filed as exhibits to the registration statement of
which this prospectus forms a part or under cover of a Current
Report on Form 8-K and incorporated in this prospectus by
reference. Statements in this prospectus or any prospectus
supplement about these documents are summaries and each statement
is qualified in all respects by reference to the document to which
it refers. You should read the actual documents for a more complete
description of the relevant matters.
INCORPORATION BY REFERENCE
The SEC allows us to incorporate by reference much of the
information that we file with the SEC, which means that we can
disclose important information to you by referring you to those
publicly available documents. The information that we incorporate
by reference in this prospectus is considered to be part of this
prospectus. Because we are incorporating by reference future
filings with the SEC, this prospectus is continually updated and
those future filings may modify or supersede some of the
information included or incorporated by reference in this
prospectus. This means that you must look at all of the SEC filings
that we incorporate by reference to determine if any of the
statements in this prospectus or in any document previously
incorporated by reference have been modified or superseded. This
prospectus incorporates by reference the documents listed below and
any future filings we make with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act (in each case, other than
those documents or the portions of those documents furnished
pursuant to Items 2.02 or 7.01 of any Current Report on
Form 8-K and, except as may be noted in any such
Form 8-K, exhibits filed on such form that are related to such
information), until the offering of the securities under the
registration statement of which this prospectus forms a part is
terminated or completed:
•our
Annual Report on Form 10-K for the year ended December 31, 2021,
filed with the SEC on
March 4, 2022;
•our
Quarterly Reports on Form 10-Q for the quarters ended March 31,
2022, June 30, 2022 and September 30, 2022, filed with the SEC
on
May 13, 2022,
August 12, 2022
and
November 3, 2022,
respectively;
•the
portions of our Definitive Proxy Statement on Schedule 14A
(other than information furnished rather than filed) that are
incorporated by reference into our Annual Report on Form 10-K,
filed with the SEC on
April 22, 2022;
•The
description of our common stock contained in the Registration
Statement on Form 8-A relating thereto, filed on
October 8, 2021,
including any amendment or report filed for the purpose of updating
such description.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address:
ESS Tech, Inc.
26440 SW Parkway Ave., Bldg. 83
Wilsonville, Oregon 97070
Attn: Investor Relations
(855) 423-9920
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance
and Distribution
The following table sets forth estimated expenses in connection
with the issuance and distribution of the securities being
registered:
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Amount
to be Paid |
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SEC registration fee
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$ |
33,060 |
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FINRA filing fee
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* |
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Stock exchange listing fee
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* |
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Printing and engraving expenses
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* |
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Accounting fees and expenses
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* |
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Legal fees and expenses
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* |
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Transfer agent and registrar fees and expenses
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* |
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Trustee’s fees and expenses
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* |
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Miscellaneous expenses
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*
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Total
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$ |
* |
______________
*These
fees are calculated based on the securities offered and the number
of issuances and accordingly cannot be estimated at this
time.
Item 15. Indemnification of Directors
and Officers
Section 102(b)(7) of the DGCL allows a corporation to provide in
its certificate of incorporation that a director 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, except where the director 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. Our certificate of
incorporation 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
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 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 16. Exhibits
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Incorporation by Reference |
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Exhibit Number |
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Exhibit Description |
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Form |
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File No. |
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Exhibit Number |
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Filing
Date |
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Filed Herewith |
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1.1* |
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Form of Underwriting Agreement |
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3.1 |
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8-K |
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001-39525 |
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3.1 |
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October 15, 2021 |
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3.2 |
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10-Q |
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001-39525 |
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3.2 |
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November 3, 2022 |
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4.1* |
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Specimen Common Stock Certificate
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4.2* |
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Form of Preferred Stock Certificate |
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4.3 |
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X |
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4.4* |
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Form of Debt Security |
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4.5* |
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Form of Depositary Agreement |
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4.6* |
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Form of Warrant Agreement |
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4.7* |
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Form of Subscription Agreement |
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4.8* |
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Form of Purchase Contract Agreement |
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4.9* |
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Form of Unit Agreement |
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4.10* |
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Form of Unit |
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5.1 |
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X |
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23.1 |
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X |
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23.2 |
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X |
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24.1 |
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X |
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25.1** |
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Form T-1 Statement of Eligibility of Trustee for Indenture under
the Trust Indenture Act of 1939 |
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107 |
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X |
_______________
*To
be filed, if applicable, by amendment or incorporated by reference
pursuant to a Current Report on Form 8-K.
**To
be filed pursuant to Section 305(b)(2) of the Trust Indenture
Act of 1939, as amended.
Item 17. 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 SEC, pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective
registration statement; and
(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 (1)(i), (1)(ii) and (1)(iii) 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 SEC by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement, or is contained in a form
of prospectus filed pursuant to Rule 424(b) that is part of
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 under the Securities Act
to any purchaser:
(i) each prospectus filed by the registrant
pursuant to Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement;
and
(ii) each prospectus required to be filed
pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a
registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii) or (x)
for the purpose of providing the information required by
Section 10(a) of the Securities Act shall be deemed to be part
of and included in the registration statement as of the earlier of
the date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person
that is at that date an underwriter, such date shall be deemed to
be a new effective date of the registration statement relating to
the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective
date.
(5)that,
for the purpose of determining liability of a registrant under the
Securities Act to any purchaser in the initial distribution of the
securities, the undersigned registrant undertakes that in a primary
offering of securities of such 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.
(6)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 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 therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(7)to
file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of Section 310
of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act.
(b) 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 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, the
registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 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 November 3,
2022.
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ESS TECH, INC. |
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By: |
/s/ Eric P. Dresselhuys |
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Eric P. Dresselhuys |
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Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints Eric P.
Dresselhuys and Amir Moftakhar, and each of them, as his or her
true and lawful attorney-in-fact and agent, 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 registration statements filed
pursuant to Rule 462 under the Securities Act, and to file the
same, with all exhibits thereto, and all other documents in
connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent 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
and about the premises, as fully for all intents and purposes as
they, he or she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or any of them,
or their, 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:
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Signature |
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Title |
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Date |
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/s/ Eric P. Dresselhuys
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Chief Executive Officer and Director
(Principal Executive Officer) |
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November 3, 2022
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Eric P. Dresselhuys |
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/s/ Amir Moftakhar
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Chief Financial Officer
(Principal Financial and Accounting Officer) |
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November 3, 2022
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Amir Moftakhar |
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/s/ Michael R. Niggli
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Chairman of the Board |
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November 3, 2022
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Michael R. Niggli |
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/s/ Craig Evans
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Director |
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November 3, 2022
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Craig Evans |
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/s/ Raffi Garabedian
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Director |
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November 3, 2022
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Raffi Garabedian |
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/s/ Claudia Gast
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Director |
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November 3, 2022
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Claudia Gast |
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/s/ Rich Hossfeld
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Director |
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November 3, 2022
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Rich Hossfeld |
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/s/ Kyle Teamey
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Director |
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November 3, 2022
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Kyle Teamey |
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/s/ Alexi Wellman
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Director |
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November 3, 2022
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Alexi Wellman |
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/s/ Daryl Wilson
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Director |
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November 3, 2022
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Daryl Wilson |
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ACON S2 Acquisition (NASDAQ:STWOU)
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