As filed with the U.S. Securities and Exchange Commission on March 29, 2024
Registration No. 333-_____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ASCENT SOLAR TECHNOLOGIES, INC.
(Exact name of Registrant as specified in its charter)
| Delaware | 47-3324725 | |
| (State or other jurisdiction of Incorporation or organization) |
(I.R.S. Employer Identification No.) |
12300 Grant Street
Thornton, Colorado 80241
(720) 872-5000
(Address of principal executive offices) (Zip code)
2023 Ascent Solar Technologies, Inc. Equity Incentive Plan
CEO Inducement RSU Award dated September 21, 2022
CFO Inducement RSU Award dated December 12, 2022
(Full titles of the plans)
Jin Jo
Chief Financial Officer
Ascent Solar Technologies, Inc.
12300 Grant Street
Thornton, Colorado
(720) 872-5000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
James H. Carroll
Carroll Legal LLC
1449 Wynkoop Street
Suite 507
Denver, CO 80202
(303) 888-4859
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ |
| Non-accelerated filer | ☒ | Smaller reporting company | ☒ |
| Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 to be contained in the Section 10(a) prospectus is not being filed with or included in this registration statement (by incorporation by reference or otherwise) in accordance with the rules and regulations of the Securities and Exchange Commission (“SEC”). The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the equity benefit plans covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.
PART II
| ITEM 3. | INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE |
The following documents filed by Ascent Solar Technologies, Inc. (the “Registrant”) with the SEC are incorporated by reference into this Registration Statement:
| · | The Company’s Annual Report on Form 10-K for the year ended December 31, 2023 filed with the sec on February 21, 2024; | |
| · | The Company's Current Reports on Form 8-K filed on March 7 and March 11, 2024, to the extent filed and not furnished; and | |
| · | The description of our securities registered pursuant to Section 12 of the Exchange Act our Registration Statement on Form 8-A (File No. 001-32919), filed with the SEC under Section 12(b) of the Exchange Act, on August 16, 2022, including any amendment or report filed for the purpose of updating such description. |
All other reports and documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items) on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this Registration Statement from the date of the filing of such reports and documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document that also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
| ITEM 4. | DESCRIPTION OF SECURITIES |
Not applicable.
| ITEM 5. | INTERESTS OF NAMED EXPERTS AND COUNSEL |
Not applicable.
| ITEM 6. | INDEMNIFICATION OF DIRECTORS AND OFFICERS |
Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities, including reimbursement for expenses incurred, arising under the Securities Act. The Registrant’s certificate of incorporation permits indemnification of the Registrant’s directors, officers, employees and other agents to the maximum extent permitted by the Delaware General Corporation Law, and the Registrant’s bylaws provide that the Registrant will indemnify its directors and executive officers and permit the Registrant to indemnify its other officers, employees and other agents, in each case to the maximum extent permitted by the Delaware General Corporation Law.
The Registrant maintains insurance policies that indemnify its directors and officers against various liabilities arising under the Securities Act and the Exchange Act that might be incurred by any director or officer in his or her capacity as such.
| ITEM 7. | EXEMPTION FROM REGISTRATION CLAIMED. |
Not applicable.
| ITEM 8. | EXHIBITS |
The following documents are filed as exhibits to this Registration Statement.
* Filed herewith.
| ITEM 9. | UNDERTAKINGS |
| 1. | The undersigned registrant hereby undertakes: |
(a) 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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
(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 (a)(i) and (a)(ii) 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 Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(b) 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) 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.
(d) That, for the purpose of determining liability of the 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 the 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.
2. The undersigned registrant hereby undertakes 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 Section 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
3. 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 Securities and Exchange 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, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Thornton, State of Colorado, on March 29, 2024.
| ASCENT SOLAR, INC. | |
| By: /s/ Jin Jo | |
| Jin Jo | |
| Chief Financial Officer |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Paul Warley and Jin Jo, and each of them, as his or her true and lawful attorneys-in-fact and agents, each with the full power of substitution, for him or her and in their name, place or stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments), and to sign any registration statement for the same offering covered by this Registration Statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his, her or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ Paul Warley | Chief Executive Officer and Director | March 29, 2024 | ||
| Paul Warley | (Principal Executive Officer) | |||
| /s/ Jin Jo | Chief Financial Officer | March 29, 2024 | ||
| Jin Jo | (Principal Financial and Accounting Officer) | |||
| /s/ David Peterson | Chairman and Director | March 29, 2024 | ||
| David Peterson | ||||
| /s/ Louis Berezovsky | Director | March 29, 2024 | ||
| Louis Berezovsky | ||||
| /s/ Forrest Reynolds | Director | March 29, 2024 | ||
| Forrest Reynolds | ||||
| /s/ Gregory Thompson | Director | March 29, 2024 | ||
| Gregory Thompson | ||||
Exhibit 5.1
Carroll Legal LLC
1449 Wynkoop Street
Suite 507
Denver, CO 80202
March 29, 2024
Ascent Solar Technologies, Inc.
Thornton, Colorado
Ladies and Gentlemen:
We have acted as counsel to Ascent Solar Technologies, Inc., a Delaware corporation (the “Company”), in connection with the filing of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission covering the offering of up to 546,173 shares (the “Shares”) of Common Stock, par value $0.0001 per share (the “Common Stock”), consisting of (a) 525,000 shares of Common Stock issuable pursuant to the Company’s 2023 Equity Incentive Plan (the “Plan”), (b) 17,673 shares of Common Stock issuable pursuant to an inducement RSU grant agreed to by the Company and Jeffrey Max in connection with Mr. Max’s commencement of employment with the Company (the “CEO RSU Inducement Grant”), and (c) 3,500 shares of Common Stock issuable pursuant to an inducement RSU grant agreed to by the Company and Paul Warley in connection with Mr. Warley’s commencement of employment with the Company (the “CFO RSU Inducement Grant”).
In connection with this opinion, we have examined and relied upon (a) the Registration Statement, (b) the Company’s Certificate of Incorporation and Bylaws, each as currently in effect, (c) the Plan, and (d) originals or copies certified to our satisfaction of such records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the accuracy, completeness and authenticity of certificates of public officials and the due authorization, execution and delivery by all persons other than by the Company of all documents where authorization, execution and delivery are prerequisites to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified such matters.
Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plan, the CEO RSU Inducement Grant, and the CFO RSU Inducement Grant and the Registration Statement, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration Statement.
Sincerely,
Carroll Legal LLC
| By: | /s/ James H. Carroll | |
| James H. Carroll | ||
| Managing Member | ||
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the use in this Registration Statement on Form S-8 of Ascent Solar Technologies Inc. of our report dated February 21, 2024,
relating to our audit of the December 31, 2023 and 2022 financial statements of Ascent Solar Technologies Inc.
Haynie & Company
Salt Lake City, Utah
March 29, 2024
Exhibit 107
CALCULATION OF REGISTRATION FEE
Form S-8
(Form Type)
Ascent Solar Technologies, Inc.
(Exact name of registrant as specified in its charter)
Newly Registered Securities
| Security Type |
Security Class Title |
Fee Calculation Rule |
Amount Registered(1) |
Proposed Maximum Offering Price Per Share(2) |
Maximum Aggregate Offering Price |
Fee Rate |
Amount of Registration Fee | ||||||||||
| Equity | Common Stock, $0.0001 par value per share | Rule 457(c) and Rule 457(h) | 546,173(3) | $0.4005 | $218,742.29 | $0.0001476 | $32.29 | ||||||||||
| Total Offering Amounts | 218,742.29 | $0.0001476 | $32.29 | ||||||||||||||
| Total Fees Previously Paid | — | ||||||||||||||||
| Total Fee Offsets | — | ||||||||||||||||
| Net Fee Due | $32.29 | ||||||||||||||||
| (1) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of common stock, $0.0001 par value per share (the “Common Stock”), which become issuable under the 2023 Ascent Solar Technologies, Inc. Equity Incentive Plan (the “2023 Plan”), the CEO inducement grant or the CFO inducement grant by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of our outstanding shares of Common Stock. |
| (2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act. The price per share and aggregate offering price are calculated on the basis of $0.4005, the average of the high and low price of the registrant’s Common Stock as reported on The Nasdaq Stock Market LLC on March 25, 2024. |
| (3) | Represents 525,000 shares of common stock reserved for issuance under the 2023 Plan, 17,673 shares reserved under the CEO inducement grant, and 3,500 shares reserved under the CFO inducement grant. If awards outstanding under the 2023 Plan are cancelled, forfeited or otherwise terminated without being exercised, the number of shares underlying such awards will be available for future grant under the 2023 Plan. The 2023 Plan provides that an additional number of shares will automatically be added to the shares authorized for issuance under the 2023 Plan on January 1 of each year. The number of shares added each year will be equal to the lesser of: (i) 5% of the outstanding shares on the immediately preceding December 31, or (ii) such lesser amount as determined by the Plan administrator. |