S-8

As filed with the Securities and Exchange Commission on March 4, 2022

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

ESS TECH, INC.

(Exact name of Registrant as specified in its charter)

Delaware	98-1550150
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification No.)

26440 SW Parkway Ave., Bldg. 83

Wilsonville, OR 97070

(Address of Principal Executive Offices, including zip code)

ESS Tech, Inc. 2021 Equity Incentive Plan

(Full title of the plan)

Eric Dresselhuys

Chief Executive Officer

26440 SW Parkway Ave., Bldg. 83

Wilsonville, OR 97070

(855) 423-9920 

(Name, address and telephone number, including area code, of agent for service)

Copies to:

Mark B. Baudler Christoph Luschin Alexandra Perry Wilson Sonsini Goodrich & Rosati, P.C. 650 Page Mill Road Palo Alto, California 94304 (650) 493-9300 Amir Moftakhar Chief Financial Officer 26440 SW Parkway Ave., Bldg. 83 Wilsonville, Oregon 97070 (888) 423-9920

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer	☐	Accelerated filer	☐
Non-accelerated filer	☒	Smaller reporting company	☒
		Emerging growth company	☒

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐

EXPLANATORY STATEMENT

ESS Tech, Inc. (the “Registrant”) is filing this Registration Statement with the Securities and Exchange Commission (the “SEC”) to register (i) 5,400,000 additional shares of common stock, par value $0.0001 per share (“Common Stock”), under the Registrant’s 2021 Equity Incentive Plan (the “2021 Plan”), pursuant to the automatic annual share increase provision set forth in Section 3(b) of the 2021 Plan and (ii) 3,898,643 shares of Common Stock underlying option awards (the “Assumed Awards”) issued upon conversion of existing option awards outstanding under the Energy Storage Systems, Inc. 2014 Equity Incentive Plan, as amended (the “2014 Plan”), immediately prior to the consummation of the transactions contemplated by the Business Combination Agreement, dated May 6, 2021, by and among the Registrant (formerly known as ACON S2 Acquisition Corp.), ESS Tech Subsidiary, Inc. (formerly known as ESS Tech, Inc.), and SCharge Merger Sub, Inc., that, on or after the effectiveness of the 2021 Plan, expire or otherwise terminate without having been exercised in full, are tendered to or withheld by the Registrant for payment of an exercise price or for tax withholding obligations, or are forfeited to or repurchased by the Registrant due to failure to vest. In accordance with General Instruction E of Form S-8, this Registration Statement hereby incorporates by reference the contents of the Registrant’s Registration Statement on Form S-8 filed with the Commission on December 15, 2021 (Registration No. 333-261649), except to the extent supplemented, amended or superseded by the information set forth herein.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the “SEC”):

(1)Our Annual Report on Form 10-K (File No. 001-39525) for the fiscal year ended December 31, 2021 filed with the SEC on March 3, 2022;

(2)Our Current Report on Form 8-K (File No. 001-39525) filed on February 17, 2022 (other than information furnished rather than filed); and

(3)The description of our Common Stock contained in our Registration Statement on Form 8-A (File No. 333-257232) filed with the SEC on October 8, 2021 pursuant to Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description.

All documents filed by the Registrant with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the SEC (including, without limitation, information furnished under Item 2.02 or Item 7.01 of Current Reports on Form 8-K and the exhibits related to such items furnished under Item 9.01) shall not be deemed incorporated by reference into this Registration Statement.

Any statement contained in this Registration Statement, or in a document incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

Item 8. Exhibits.

The Registrant has filed the exhibits listed on the accompanying Exhibit Index of this Registration Statement.

EXHIBIT INDEX

		Incorporated By Reference
Exhibit	Description	Form	File No.	Exhibit No.	Filing Date
4.1**	Amended and Restated Certificate of Incorporation of ESS	8-K	001-39525	3.1	October 15, 2021
4.2**	Amended and Restated Bylaws of ESS	8-K	001-39525	3.2	October 15, 2021
5.1	Opinion of Wilson Sonsini Goodrich & Rosati, P.C. with respect to the legality of the securities being registered
23.1	Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm
23.2	Consent of Wilson Sonsini Goodrich & Rosati, P.C. (included in Exhibit 5.1)
24.1	Powers of Attorney (included on signature page hereto)
99.1†**	Energy Storage Systems, Inc. 2014 Equity Incentive Plan	S-4	333-257232	10.5	June 21, 2021
99.2†**	Amendment to ESS Tech, Inc. 2014 Equity Incentive Plan	S-4	333-257232	10.6	June 21, 2021
99.3†**	2021 Equity Incentive Plan and form of award agreements thereunder	S-4/A	333-257232	Annex D	September 9, 2021
107	Filing Fee Table (filed herewith).

**	Previously filed.
†	Indicates management contract or compensatory plan or arrangement.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended. the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Wilsonville, State of Oregon, on March 4, 2022.

ESS TECH, INC.
By:	/s/ Eric P. Dresselhuys
	Eric P. Dresselhuys
	Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Eric P. Dresselhuys, Craig Evans and Amir Moftakhar, and each one of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for them and in their name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement on Form S-8, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as they might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

Signature	Title	Date
/s/ Eric P. Dresselhuys	Chief Executive Officer and Director (Principal Executive Officer)	March 4, 2022
Eric P. Dresselhuys
/s/ Amir Moftakhar	Chief Financial Officer (Principal Financial Officer)	March 4, 2022
Amir Moftakhar
/s/ Jeff Bodner	Chief Accounting Officer (Principal Accounting Officer)	March 4, 2022
Jeff Bodner
/s/ Craig Evans	Director and President	March 4, 2022
Craig Evans
/s/ Raffi Garabedian	Director	March 4, 2022
Raffi Garabedian
/s/ Claudia Gast	Director	March 4, 2022
Claudia Gast
/s/ Rich Hossfeld	Director	March 4, 2022
Rich Hossfeld
/s/ Michael R. Niggli	Director	March 4, 2022
Michael R. Niggli
/s/ Kyle Teamey	Director	March 4, 2022
Kyle Teamey
/s/ Alexi Wellman	Director	March 4, 2022
Alexi Wellman
/s/ Daryl Wilson	Director	March 4, 2022
Daryl Wilson

EX-FILING FEES

Exhibit 107

Calculation of Filing Fee Tables

Form S-8

(Form Type)

ESS Tech, Inc.

(Exact name of registrant as specified in its charter)

Table 1 – Newly Registered Securities
Security Type	Security Class Title	Fee Calculation Rule	Amount Registered(1)	Proposed Maximum Offering Price Per Unit	Maximum Aggregate Offering Price	Fee Rate	Amount of Registration Fee
Equity	Common Stock, $0.0001 par value per share, reserved for issuance pursuant to the ESS Tech, Inc. 2021 Equity Incentive Plan(2)	Other	5,400,000	$4.22(3)	$22,788,000	$92.70 per $1,000,000	$2,113
Equity	Common Stock, $0.0001 par value per share, reserved for issuance pursuant to options outstanding under the Energy Storage Systems, Inc. 2014 Equity Incentive Plan(4)	Other	3,898,643	$0.83(5)	$3,235,874	$92.70 per $1,000,000	$300
Total Offering Amounts					$25,321,874		$2,413
Total Fee Offsets							$2,413
Net Fee Due							$0

(1)Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also cover any additional shares of the registrant’s common stock, par value $0.0001 (“Common Stock”), per share that become issuable as a result of any stock dividend, stock split, recapitalization, or other similar transaction effected without the receipt of consideration that results in an increase to the number of outstanding shares of registrant’s common stock, as applicable.

(2)Represents additional shares of Common Stock that were automatically added to the shares authorized for issuance under the ESS Tech, Inc. 2021 Equity Incentive Plan (the “2021 Plan”) on January 1, 2022, pursuant to an “evergreen” provision contained in the 2021 Plan. Pursuant to the provision contained in the 2021 Plan, on the first day of each fiscal year beginning with the 2022 fiscal year and ending with the 2031 fiscal year, the number of shares authorized for issuance under the 2021 Plan is automatically increased by the least of (i) 15,260,000 shares of Common Stock,

(ii) five percent (5%) of the outstanding number of shares of Common Stock on the last day of the immediately preceding fiscal year, or (iii) such number of shares of Common Stock as determined by the administrator of the 2021 Plan.

(3)Estimated in accordance with Rule 457(c) and (h) of the Securities Act solely for the purpose of calculating the Registrant’s registration fee on the basis of $4.22 per share, which is the average of the high and low prices of common stock, as reported on the New York Stock Exchange, on February 25, 2022.

(4)Represents shares of Common Stock reserved for issuance upon the exercise of underlying option awards (the “Assumed Awards”) issued upon conversion of existing option awards outstanding under the Energy Storage Systems, Inc. 2014 Equity Incentive Plan, as amended (the “2014 Plan”), immediately prior to the consummation of the transactions contemplated by the Business Combination Agreement, dated May 6, 2021, by and among the Registrant (formerly known as ACON S2 Acquisition Corp.), ESS Tech Subsidiary, Inc. (formerly known as ESS Tech, Inc.), and SCharge Merger Sub, Inc., that, on or after the effectiveness of the 2021 Plan, expire or otherwise terminate without having been exercised in full, are tendered to or withheld by the Registrant for payment of an exercise price or for tax withholding obligations, or are forfeited to or repurchased by the Registrant due to failure to vest. To the extent that, on or after the effectiveness of the 2021 Plan, any shares subject to Assumed Awards expire or otherwise terminate without having been exercised or issued in full, are tendered to or withheld by the Registrant for payment of an exercise price or tax withholding obligations, or are forfeited to or repurchased by the Registrant due to failure to vest, the shares of Common Stock subject to such awards will become available for issuance under the 2021 Plan.

(5)Pursuant to Rule 457(c) and 457(h) under the Securities Act, and solely for the purpose of calculating the registration fee, the proposed maximum offering price per share is $0.83, which is the weighted-average exercise price (rounded to the nearest cent) of the shares issuable upon the exercise of Assumed Awards under the 2014 Plan being registered hereunder.                                        

Table 2 – Fee Offset Claims and Sources
	Registrant or Filer Name	Form or Filing Type	File Number	Initial Filing Date	Filing Date	Fee Offset Claimed	Security Type Associated with Fee Offset Claimed	Security Title Associated with Fee Offset Claimed	Unsold Securities Associated with Fee Offset Claimed	Unsold Aggregate Offering Amount Associated with Fee Offset Claimed	Fee Paid with Fee Offset Source
Rule 457(p)
Fee Offset Claims	ESS Tech, Inc.	S-1	333- 261900(1)	December 27, 2021		$2,413	Equity	Common Stock, par value $0.0001 per share	6,500,000	$74,692,800
Fee Offset Sources	ESS Tech, Inc.	S-1	333- 261900(1)		December 27, 2021						$6,950(2)

(1)    The registrant withdrew the registration statement on Form S-1 (No. 333-261900) by filing a Form RW on February 8, 2022. The withdrawn registration statement on Form S-1 (No. 333-261900) was not declared effective and no securities were sold thereunder.

EX-5.1

Exhibit 5.1

Wilson Sonsini Goodrich & Rosati Professional Corporation 650 Page Mill Road Palo Alto, California 94304-1050 O: 650.493.9300 F: 650.493.6811

March 4, 2022

ESS Tech, Inc.
26440 SW Parkway Ave., Bldg. 83
Wilsonville, OR 97070

Re:    Registration Statement on Form S-8

Ladies and Gentlemen:

This opinion is furnished to you in connection with the Registration Statement on Form S-8 (the “Registration Statement”) filed by ESS Tech, Inc. (f/k/a ACON S2 Acquisition Corp.), a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”), under the Securities Act of 1933, as amended (the “Securities Act”), covering the registration of an aggregate of up to 9,298,643 shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (“Common Stock”). The Shares include (i) 5,400,000 shares of Common Stock reserved for issuance pursuant to future awards under the Company’s 2021 Equity Incentive Plan (the “2021 Plan”), and (ii) 3,898,643 shares of Common Stock underlying options previously granted pursuant to the Company’s 2014 Equity Incentive Plan, as amended (the “2014 Plan”, and together with the 2021 Plan, the “Plans”).

We are acting as counsel for the Company in connection with the registration of the Securities. As such counsel, we have made such legal and factual examinations and inquiries as we have deemed necessary or advisable for the purpose of rendering the opinions and statements set forth below. In rendering the opinions and statements expressed below, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary for the purposes of rendering this opinion.

In addition, we have reviewed originals or copies of such corporate records of the Company, certificates of public officials, a certificate of an officer of the Company as to factual matters, and such other documents which we consider necessary or advisable for the purpose of rendering the opinions set forth below. We have not independently established the facts stated therein.

In our examination, we have assumed the genuineness of all signatures, the authenticity and completeness of all documents submitted to us as originals, the conformity with the originals of all documents submitted to us as copies, the authenticity of the originals of such documents and the legal competence of all signatories to such documents. We have also assumed the authority

AUSTIN    BEIJING     BOSTON     BRUSSELS     HONG KONG     LONDON     LOS ANGELES     NEW YORK

PALO ALTO     SAN DIEGO     SAN FRANCISCO     SEATTLE     SHANGHAI     WASHINGTON, DC     WILMINGTON, DE

ESS Tech, Inc.

March 4, 2022

Page 2

of such persons signing on behalf of the parties thereto other than the Company and the due authorization, execution and delivery of all documents by the parties thereto other than the Company. We have assumed that the certificates representing the Securities have been properly authenticated by the signature of an authorized officer of the Company’s transfer agent. We have also assumed the conformity of the documents filed with the Commission via the Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”), except for required EDGAR formatting changes, to physical copies submitted for our examination and the absence of any evidence extrinsic to the provisions of the written agreements between the parties that the parties intended a meaning contrary to that expressed by those provisions.

We express no opinion as to any matter relating to the laws of any jurisdiction other than the federal laws of the United States of America and the General Corporation Law of the State of Delaware.

Based upon and subject to the foregoing qualifications, assumptions and limitations and the further limitations set out below, we are of the opinion that when the Shares have been issued pursuant to the applicable provisions of the Plans, and pursuant to the agreements that accompany the Plans, and in accordance with the Registration Statement, such Shares will be validly issued, fully paid and nonassessable.

This opinion is furnished to you in connection with the filing of the Registration Statement, and is not to be used, circulated, quoted or otherwise relied upon for any other purpose.

We hereby consent to the filing of this opinion as an exhibit to the above-referenced Registration Statement and to the use of our name wherever it appears in the Registration Statement, the Prospectus, any prospectus supplement, and in any amendment or supplement thereto. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

Very truly yours,

/s/ Wilson Sonsini Goodrich & Rosati, P.C.

WILSON SONSINI GOODRICH & ROSATI

Professional Corporation

EX-23.1

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2021 Equity Incentive Plan of ESS Tech, Inc. of our report dated March 3, 2022, with respect to the consolidated financial statements of ESS Tech, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2021, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

Portland, Oregon

March 3, 2022