Form S-8 - Securities to be offered to employees in employee benefit plans

As filed with the Securities and Exchange Commission on March 26, 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

 

HELIOGEN, INC.

(Exact name of registrant as specified in its charter)

 

Delaware		84-4204953
(State or other jurisdiction of incorporation)		(I.R.S. Employer Identification No.)

 

130 W Union St.
Pasadena, CA		91103
(Address of principal executive offices)		(Zip Code)

 

Heliogen, Inc. 2021 Equity Incentive Plan

Heliogen, Inc. 2021 Employee Stock Purchase Plan

(Full title of the plans)

 

Debbie Chen

General Counsel

Heliogen, Inc.

130 West Union Street

Pasadena, California 91103

Tel: [phone]

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

 

Copy to:

 

John-Paul Motley

Cooley LLP 

355 South Grand Avenue, 9^th Floor
Los Angeles, California 90071
Tel: [phone]

 

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 Note

 

Heliogen, Inc. (the “Registrant”) is filing this registration statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) to register the offering of an additional 297,315 shares of common stock (the “Registered Shares”), par value $0.0001 per share (“Common Stock”), of the Registrant. The 297,315 shares of Common Stock being registered herein include (i) 237,852 shares of Common Stock issuable pursuant to the Heliogen, Inc. 2021 Equity Incentive Plan (the “2021 EIP”) and (ii) 59,463 shares of Common Stock issuable pursuant to the Heliogen, Inc. 2021 Employee Stock Purchase Plan (the “2021 ESPP”). These additional shares of Common Stock are securities of the same class as other securities for which previous registration statements on Form S-8 (File Nos. 333-263346 and 333-269694) were filed with the Commission on March 7, 2022 and February 10, 2023 (the “Prior Registration Statements”). Accordingly, the contents of the Prior Registration Statements are incorporated by reference into this Registration Statement pursuant to General Instruction E of Form S-8. The Registered Shares represent shares of Common Stock that have become reserved for issuance as a result of the operation of the “evergreen” provisions in each of the 2021 EIP and 2021 ESPP, which provide that the total number of shares subject to such plans may be increased on January 1 of each year pursuant to a specified formula.

 

In accordance with the instructional note to Part I of Form S-8 as promulgated by the Commission, the information specified by Part I of Form S-8 has been omitted from this Registration Statement.

 

 

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents, which have been filed with the Commission, are incorporated by reference into this Registration Statement:

 

(i)

the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2023, filed with the Commission on March 26, 2024;

 

(ii)

the Registrant’s Current Reports on Form 8-K filed with the Commission on January 12, 2024 (with respect to Item 5.02 and Exhibits 10.1 and 10.2 only), February 15, 2024 and March 25, 2024 (with respect to Item 5.02 and Exhibit 10.1 only); and

 

(iii)

the description of our common stock and Warrants contained in our Registration Statement on Form 8-A, filed with the Commission on March 12, 2021, and the description of the Series A Junior Participating Preferred Stock contained in our Registration Statement on Form 8-A filed with the Commission on April 17, 2023, in each case as updated by Exhibit 4.4 to our Annual Report on Form 10-K for the year ended December 31, 2023 filed with the Commission on March 26, 2024, together with any amendment or report filed with the Commission for the purpose of updating such description.

 

In addition, all documents filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934, as amended (other than Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 of Form 8-K, including any exhibits included with such information that are related to such items), after the date of this Registration Statement and prior to the filing of a post-effective amendment that indicates that all securities offered hereby have been sold or that 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 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 Commission shall not be deemed incorporated by reference into this Registration Statement.

 

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

 

II-1

 

 

Item 8. Exhibits.

 

Incorporated by Reference

Exhibit Number

Description

Schedule/ Form

File No.

Exhibit

Filing Date

4.1

Second Amended and Restated Certificate of Incorporation of Heliogen, Inc.

Form 8-K

001-40209

3.1

January 6, 2022

4.2

Certificate of Amendment of Certificate of Incorporation of Heliogen, Inc., dated August 31, 2023.

Form 8-K

001-40209

3.1

August 31, 2023

4.3

Second Amended and Restated Bylaws of Heliogen, Inc.

Form 10-Q

001-40209

3.2

November 8, 2022

4.4

Certificate of Designations of Series A Junior Participating Preferred Stock of Heliogen, Inc.

Form 8-K

001-40209

3.1

April 17, 2023

4.5

Specimen Common Stock Certificate.

Form 8-K

007-40209

4.1

January 6, 2022

4.6

Rights Agreement, dated as of April 16, 2023, between Heliogen, Inc. and Continental Stock Transfer & Trust Company, as rights agent.

Form 8-K

001-40209

4.1

April 17, 2023

5.1*

Opinion of Cooley LLP.

23.1*

Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm.

23.2*

Consent of Cooley LLP (contained in the opinion filed as Exhibit 5.1 hereto).

24.1*

Power of Attorney (included in the signature page of this Registration Statement).

99.1

2021 Equity Incentive Plan.

Form 8-K

001-40209

10.8

January 6, 2022

99.2

Form of Stock Option Grant Package under 2021 Equity Incentive Plan.

Form 8-K

001-40209

10.10

January 6, 2022

99.3

Form of RSU Grant Package under 2021 Equity Incentive Plan.

Form 8-K

001-40209

10.11

January 6, 2022

99.4

2021 Employee Stock Purchase Plan.

Form 8-K

001-40209

10.9

January 6, 2022

107*

Filing Fee Table

 

 

*	Filed herewith.

 

II-2

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Pasadena, State of California, on this 26^th day of March 2024.

 

	HELIOGEN, INC.
	By:	/s/ Christiana Obiaya
		Christiana Obiaya
		Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Christiana Obiaya and Alan Gahm, and each of them, as his or her true and lawful agents, proxies and attorneys-in-fact, 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 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 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, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature		Title		Date
/s/ Christiana Obiaya		Chief Executive Officer, Director		March 26, 2024
Christiana Obiaya		(Principal Executive Officer)
/s/ Alan Gahm		Interim Chief Financial Officer		March 26, 2024
Alan Gahm		(Principal Financial Officer)
/s/ Wilda Siu		Chief Accounting Officer		March 26, 2024
Wilda Siu		(Principal Accounting Officer)
/s/ Phyllis W. Newhouse		Director		March 26, 2024
Phyllis W. Newhouse
/s/ Robert Kavner		Director		March 26, 2024
Robert Kavner
/s/ Julie M. Kane		Director		March 26, 2024
Julie M. Kane
/s/ Barbara Burger		Director		March 26, 2024
Barbara Burger
/s/ Stacey Abrams		Director		March 26, 2024
Stacey Abrams
/s/ Suntharesan Padmanathan		Director		March 26, 2024
Suntharesan Padmanathan
/s/ Roger Lazarus		Director		March 26, 2024
Roger Lazarus

 

 

II-3

 

Exhibit 5.1

 

 

March 26, 2024

 

John-Paul Motley

[phone]

[e-mail]

 

Heliogen, Inc.

130 W Union St.

Pasadena, CA 91103

 

Re: Heliogen, Inc. – Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as counsel to Heliogen, Inc., a Delaware corporation (the “Company”), in connection with the filing by the Company of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) covering the offering of (a) up to 297,315 shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (“Common Stock”), consisting of (1) 237,852 shares of Common Stock issuable pursuant to the Company’s 2021 Equity Incentive Plan (the “2021 Plan”) and (2) 59,463 shares of Common Stock issuable pursuant to the Company’s 2021 Employee Stock Purchase Plan (together with the 2021 Plan, the “Plans”), and (b) the preferred share purchase rights associated with the Shares (the “2023 Rights”) as set forth in the Rights Agreement (the “2023 Rights Plan”), dated as of April 16, 2023, between the Company and Continental Stock Transfer & Trust Company, as rights agent (the “Rights Agent”).

 

In connection with this opinion, we have examined and relied upon (a) the Registration Statement and related prospectuses, (b) the Company’s certificate of incorporation and bylaws, each as currently in effect, (c) the Plans, (d) the 2023 Rights Plan and (e) such other 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 of all documents by all persons other than the Company 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.

 

Cooley LLP 355 South Grand Avenue, Suite 900 Los Angeles, CA 90071
t: [phone] f: [phone] cooley.com

 

 

 

 

March 26, 2024

Page Two

 

With respect to our opinion concerning the 2023 Rights:

 

(i) Our opinion does not address the determination a court of competent jurisdiction may make regarding whether the Company’s board of directors (the “Board”) may be required to redeem or terminate, or take other action with respect to, the 2023 Rights or 2023 Rights Plan in the future based on the facts and circumstances then existing.

 

(ii) Our opinion assumes that the 2023 Rights Plan has been duly authorized, executed and delivered by the Rights Agent and that members of the Board have acted in a manner consistent with their fiduciary duties as required under applicable law in adopting the 2023 Rights Plan. With respect to the 2023 Rights associated with the Shares to be offered in the future under the Registration Statement, our opinion assumes the 2023 Rights Plan has not been terminated by the Company or expired by its terms and the 2023 Rights have not expired or been redeemed or exchanged by the Company, in each case, prior to the issuance of such Shares.

 

(iii) Our opinion addresses corporate procedures in connection with the issuance of the 2023 Rights associated with shares of Common Stock of the Company, and not any particular provision of the 2023 Rights or the 2023 Rights Plan. It should be understood that it is not settled whether the invalidity of any particular provision of a rights agreement or purchase rights issued thereunder would invalidate such rights in their entirety.

 

On the basis of the foregoing, and in reliance thereon, and subject to the qualifications herein stated, we are of the opinion that the Shares and the associated 2023 Rights, when sold and issued in accordance with the Plans, the Registration Statement and related prospectuses, will be validly issued, and the Shares will be fully paid and nonassessable (except as to shares issued pursuant to deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).

 

This opinion is limited to the matters expressly set forth in this letter, and no opinion should be implied, or may be inferred, beyond the matters expressly stated. This opinion speaks only as to law and facts in effect or existing as of the date hereof and we have no obligation or responsibility to update or supplement this letter to reflect any facts or circumstances that may hereafter come to our attention or any changes in law that may hereafter occur.

 

We consent to the filing of this opinion as an exhibit to the Registration Statement. 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 of 1933, as amended, or the rules and regulations of the Commission thereunder.

 

Sincerely,

 

Cooley LLP
By:	/s/ John-Paul Motley
	John-Paul Motley

 

Cooley LLP 355 South Grand Avenue, Suite 900 Los Angeles, CA 90071
t: [phone] f: [phone] cooley.com

 

 

 

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Heliogen, Inc., of our report dated March 26, 2024 relating to the financial statements, which appears in Heliogen Inc.'s Annual Report on Form 10-K for the year ended December 31, 2023.

 

/s/ PricewaterhouseCoopers LLP
Los Angeles, California
March 26, 2024

 

Exhibit 107

 

CALCULATION OF FILING FEE TABLE

 

Form S-8

(Form Type)

 

Heliogen, Inc.

(Exact name of Registrant as Specified in its Charter)

 

Table 1: Newly Registered Securities

 

Security Type		Title of Each Class of Securities to be Registered		Fee Calculation Rule		Amount to be Registered(1)				Proposed Maximum Offering Price Per Share				Proposed Maximum Aggregate Offering Price				Fee Rate				Amount of Registration Fee(7)
Equity		Heliogen, Inc. 2021 Equity Incentive Plan Common Stock, $0.0001 par value per share(2)		Rule 457(c) and (h)			237,852	(3)		$	1.41	(5)		$	335,371				0.00014760			$	49.51
Equity		Heliogen, Inc. 2021 Employee Stock Purchase Plan Common Stock, $0.0001 par value per share(2)		Rule 457(c) and (h)			59,463	(4)		$	1.20	(6)		$	71,356				0.00014760			$	10.54
		TOTAL:					297,315							$	406,727							$	60.05

 

 

(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 (“Common Stock”), of Heliogen, Inc. (the “Registrant”) that become issuable under the Heliogen, Inc. 2021 Equity Incentive Plan (the “2021 Plan”) and under the Heliogen, Inc. 2021 Employee Stock Purchase Plan (the “2021 ESPP”) by reason of any stock dividend, stock split, recapitalization or any other similar transaction which results in an increase in the number of shares of the Registrant’s outstanding Common Stock.

 

(2)

Each share of common stock registered hereunder includes an associated right (the “Rights”) as set forth in the Rights Agreement, dated as of April 16, 2023, between the registrant and Continental Stock Transfer & Trust Company, as rights agent. Rights are attached to the shares of common stock, will not be offered separately, and are not exercisable until the occurrence of certain events specified in the Rights Agreement. The value attributable to the Rights, if any, is reflected in the value of the common stock.

 

(3)

Represents shares of Common Stock that were added to the shares authorized for issuance under the 2021 Plan on January 1, 2024, pursuant to an “evergreen” provision contained in the 2021 Plan.

 

(4)

Represents shares of Common Stock that were added to the shares authorized for issuance under the 2021 ESPP on January 1, 2024, pursuant to an “evergreen” provision contained in the 2021 ESPP.

 

(5)

Estimated solely for purposes of calculating the registration fee in accordance with Rule 457(c) and (h) of the Securities Act based on a per share price of $1.41, the average of the high and low price of the Common Stock on March 22, 2024, as reported on the OTCQX, which date is within five business days prior to the filing of this Registration Statement.

 

(6)

Estimated solely for purposes of calculating the registration fee in accordance with Rule 457(c) and (h) of the Securities Act based on a per share price of $1.20, the average of the high and low price of the Common Stock on March 22, 2024, as reported on the OTCQX, multiplied by 85%, which is the percentage of the price per share applicable to purchases under the 2021 ESPP. Under the 2021 ESPP, the purchase price of a share of Common Stock is equal to 85% of the fair market value of the Registrant’s Common Stock on the offering date or the purchase date, whichever is less.

 

(7)

Calculated pursuant to Rule 457 of the Securities Act by calculating the product of (i) the proposed maximum aggregate offering price and (ii) 0.00014760.

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