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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): May 22, 2023
ESS TECH, INC.
(Exact Name of Registrant as Specified in Charter)
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| Delaware |
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001-39525 |
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98-1550150 |
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(I.R.S. Employer
Identification Number)
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26440 SW Parkway Ave., Bldg. 83
Wilsonville, Oregon
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97070 |
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(Zip code) |
(855) 423-9920
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions:
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| ☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
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| Title of each class |
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Trading
Symbol(s)
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Name of each exchange
on which registered
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| Common Stock, $0.0001 par value per share |
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GWH |
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The New York Stock Exchange |
| Warrants, each whole warrant exercisable for one share of common stock at an exercise price of $11.50 |
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GWH.W |
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The New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On May 17, 2023, in connection with the end of his term with the Company’s board of directors ("Board"), Craig Evans, Co-Founder and President of ESS Tech, Inc. (the “Company”) tendered his resignation as President to be effective as of the commencement of the 2023 annual meeting of stockholders (the "Annual Meeting") held on May 19, 2023.
Mr. Evans will continue with the Company full-time as Co-Founder and Advisor to the Chief Executive Officer. His resignation is not the result of any disagreement he has with the Company on any matter relating to the Company’s operations, policies and practices. The Company and the Board thank Mr. Evans for his leadership of the Company and his service as a director.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
As disclosed in Item 5.07 below, at the Annual Meeting of the Company, the Company’s stockholders approved an amendment to Article IX of the Company’s Certificate of Incorporation (“Charter”), to provide for exculpation of certain officers to the fullest extent permitted by the Delaware General Corporation Law. The Board previously approved the amendment to the Charter subject to stockholder approval. The Charter amendment became effective upon the filing of the Certificate of Amendment to the Charter with the Secretary of State of the State of Delaware on May 19, 2023.
The foregoing is qualified in its entirety by reference to the Certificate of Amendment to the Charter, which is filed herewith as Exhibit 3.1 and incorporated herein by reference.
Item 5.07 Submission of Matters to a Vote of Security Holders.
(a) On May 19, 2023, the Company held its Annual Meeting exclusively online via live webcast. At the Annual Meeting, the Company’s stockholders (i) elected two Class II directors to the Board to serve until the Company’s 2026 annual meeting of stockholders, (ii) approved an amendment of the Charter, and (iii) ratified the appointment of KPMG LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2023. The proposals are described in detail in the Company’s definitive proxy statement on Schedule 14A, filed with the Securities and Exchange Commission (“SEC”) on April 7, 2023, as supplemented by the Company’s proxy statement supplement, filed with the SEC on May 3, 2023.
(b) The final voting results for each proposal are set forth below.
Proposal 1: Election of Directors
At the Annual Meeting, the Company’s stockholders elected two Class II directors to the Board to serve until the 2026 annual meeting of stockholders and until their respective successors have been duly elected and qualified. The table below sets forth the final voting results for each director nominee:
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Nominee |
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Votes For |
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Votes Withheld |
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Broker Non-Votes |
Sandeep Nijhawan |
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104,646,990 |
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501,542 |
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22,633,470 |
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Kyle Teamey |
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93,451,674 |
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11,696,858 |
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22,633,470 |
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Proposal 2: Amendment to our Certificate of Incorporation to Reflect Recently Adopted Delaware Law Provisions Regarding Officer Exculpation
At the Annual Meeting, the Company’s stockholders approved the amendment of its Charter to reflect recently adopted Delaware law provisions regarding officer exculpation. The table below sets forth the final voting results for this proposal:
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| Votes For |
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Votes Against |
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Abstentions |
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Broker Non-Votes |
| 103,895,988 |
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1,158,390 |
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94,154 |
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22,633,470 |
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Proposal 3: Ratification of the Appointment of KPMG LLP as the Company’s Independent Registered Public Accounting Firm
At the Annual Meeting, the Company’s stockholders ratified the appointment of KPMG LLP to serve as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2023. The table below sets forth the final voting results for this proposal:
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| Votes For |
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Votes Against |
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Abstentions |
| 107,964,372 |
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12,911 |
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19,804,719 |
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
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Exhibit No. |
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Description |
| 3.1 |
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104 |
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Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.
Dated: May 22, 2023
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| ESS TECH, INC. |
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| By: |
/s/ Anthony Rabb |
| Name: |
Anthony Rabb |
| Title: |
Chief Financial Officer |
EX-3.1
2
certificateofamendmentoffi.htm
EX-3.1
Document
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
ESS TECH, INC.
(Pursuant to Section 242 of the General Corporation Law of the State of Delaware)
ESS Tech, Inc., a corporation organized and existing under the laws of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That the name of the corporation is ESS Tech, Inc. (the “Corporation”) and that the Corporation was first formed on July 21, 2020, under the laws of the Cayman Islands, under the name “ACON S2 Acquisition Corp.”
SECOND: That the Corporation filed a certificate of domestication on October 8, 2021 pursuant to which it domesticated as a Delaware corporation and changed its name to “ESS Tech, Inc.”
THIRD: That pursuant to Section 242 of the General Corporation Law of the State of Delaware (the “DGCL”), this Certificate of Amendment to the Certificate of Incorporation (this “Certificate of Amendment”) amends the provisions of the Corporation’s Certificate of Incorporation filed with the Secretary of State of the State of Delaware on October 8, 2021 (the “Certificate of Incorporation”).
FOURTH: That pursuant to Section 242 of the DGCL, the Board of Directors of the Corporation duly adopted resolutions setting forth the terms and provisions of this Certificate of Amendment, declaring the terms and provisions of this Certificate of Amendment to be advisable, and directing the terms and provisions of this Certificate of Amendment to be submitted to and considered by the stockholders of the Corporation for approval.
RESOLVED, that the Certificate of Incorporation is hereby amended by amending and restating Article IX thereof in its entirety as follows:
“ARTICLE IX
Section 1. To the fullest extent permitted by the DGCL as the same exists or as may hereafter be amended from time to time, a director or officer of the Company shall not be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director or officer. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors or officers, then the liability of a director or officer of the Company shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
Section 2. Subject to any provisions in the Bylaws of the Company related to indemnification of directors of the Company, the Company shall indemnify, to the fullest extent permitted by applicable law, any director of the Company who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”) by reason of the fact that he or she is or was a director of the Company or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any such Proceeding. The Company shall be required to indemnify a person in connection with a Proceeding (or part thereof) initiated by such person only if the Proceeding (or part thereof) was authorized by the Board of Directors.
Section 3. The Company shall have the power to indemnify, to the extent permitted by applicable law, any officer, employee or agent of the Company who was or is a party or is threatened to be made a party to any Proceeding by reason of the fact that he or she is or was a director, officer, employee or agent of the Company or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any such Proceeding.
Section 4. Neither any amendment, repeal, nor elimination of any Section of this ARTICLE IX, nor the adoption of any provision of this Certificate of Incorporation or the Bylaws of the Company inconsistent with this ARTICLE IX, shall eliminate or reduce the effect of this ARTICLE IX in respect of any matter occurring, or any Proceeding accruing or arising or that, but for this ARTICLE IX, would accrue or arise, prior to such amendment, repeal, elimination or adoption of an inconsistent provision.”
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FIFTH: The terms and provisions of this Certificate of Amendment have been duly adopted in accordance with Section 242 of the DGCL.
[Signature Page Follows]
IN WITNESS WHEREOF, this Certificate of Amendment has been duly executed by a duly authorized officer of the Corporation on this 19th day of May, 2023.
By: /s/ Eric Dresselhuys
Name: Eric Dresselhuys
Title: Chief Executive Officer
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