As filed with the Securities and Exchange Commission on June 27, 2024
Registration No. 333-278352
Registration No. 333-259621
Registration No. 333-248536
Registration No. 333-225396
Registration No. 333-214785
Registration No. 333-204690
Registration No. 333-196360
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO:
FORM S-8 REGISTRATION STATEMENT NO. 333-278352
FORM S-8 REGISTRATION STATEMENT NO. 333-259621
FORM S-8 REGISTRATION STATEMENT NO. 333-248536
FORM S-8 REGISTRATION STATEMENT NO. 333-225396
FORM S-8 REGISTRATION STATEMENT NO. 333-214785
FORM S-8 REGISTRATION STATEMENT NO. 333-204690
FORM S-8 REGISTRATION STATEMENT NO. 333-196360
UNDER
THE SECURITIES ACT OF 1933
ENERGOUS CORPORATION
(Exact name of Registrant as specified in its charter)
| Delaware | 46-1318953 |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
3590 North First Street, Suite 210
San Jose, California 95134
(Address of principal executive offices, including zip code)
Energous
Corporation 2013 Equity Incentive Plan
Energous Corporation 2014 Non-Employee Equity Compensation Plan
Energous Corporation Performance Share Unit Plan
Energous Corporation 2024 Equity Incentive Plan
(Full title of the plans)
Mallorie Burak
Chief Financial Officer
Energous Corporation
3590 North First Street, Suite 210
San Jose, California 95134
(408) 963-0200
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Ned A. Prusse
David Dedyo
Perkins Coie LLP
1900 Sixteenth Street, Suite 1400
Denver, Colorado 80202-5255
(303) 291-2300
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 | x | Smaller reporting company | x |
| 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
On June 12, 2024 (the “Effective Date”), the stockholders of Energous Corporation (the “Registrant”) approved the Registrant’s 2024 Equity Incentive Plan (the “2024 Plan”). The 2024 Plan replaces the following plans of the Registrant: (i) the 2013 Equity Incentive Plan (the “2013 Plan”), (ii) the 2014 Non-Employee Equity Compensation Plan (the “2014 Plan), (iii) the Performance Share Unit Plan (the “PSU Plan”), and (iv) the 2017 Equity Inducement Plan (the “2017 Plan”). As of the Effective Date, no further awards will be granted under the foregoing plans.
The total number of shares of the Registrant’s common stock, par value $0.00001 per share (“Common Stock”), available for issuance under the 2024 Plan includes 456,000 newly authorized shares (the “2024 Plan New Shares”), plus (i) an aggregate of 259,274 shares of Common Stock that were previously available for future awards under the 2013 Plan (121,115 shares), the 2014 Plan (25,512 shares) and the PSU Plan (112,647 shares) (collectively, the “Prior Plans”) as of the Effective Date and (ii) up to an aggregate of 26,191 shares of Common Stock subject to outstanding awards under the Prior Plans as of the Effective Date that, on or after the Effective Date, lapse, expire, terminate or are canceled prior to the issuance of shares thereunder (collectively, the shares in (i) and (ii), the “Carryover Shares”). As of the Effective Date, 18,732 shares are subject to outstanding awards under the 2013 Plan and 7,459 shares are subject to awards under the 2014 Plan.
In accordance with Item 512(a)(1)(iii) of Regulation S-K and Securities and Exchange Commission Compliance and Disclosure Interpretation 126.43, the following post-effective amendments to Registration Statements on Form S-8 (each, a “Post-Effective Amendment”) are hereby filed by the Registrant with the Securities and Exchange Commission (the “Commission”) to cover the issuance of the Carryover Shares pursuant to the terms of the 2024 Plan to the extent such shares previously registered on a Registration Statement on Form S-8 (each, a “Prior Registration Statement”) for issuance under a Prior Plan are, or become, issuable under the 2024 Plan (with all share numbers below adjusted to reflect the Registrant’s 1:20 reverse stock split effected on August 15, 2023, with any fractional share rounded down to the nearest whole share):
| · | Post-Effective Amendment No. 1 to Registration Statement No. 333-278352, filed on March 28, 2024 with respect to 50,000 shares under the 2013 Plan; |
| · | Post-Effective Amendment No. 1 to Registration Statement No. 333-259621, filed on September 17, 2021 with respect to 75,000 shares under the 2013 Plan and 85,000 shares under the PSU Plan; |
| · | Post-Effective Amendment No. 1 to Registration Statement No. 333-248536, filed on September 1, 2020 with respect to 60,000 shares under the 2013 Plan, 40,000 shares under the 2014 Plan and 35,000 shares under the PSU Plan; |
| · | Post-Effective Amendment No. 1 to Registration Statement No. 333-225396, filed on June 1, 2018 with respect 80,000 shares under the 2013 Plan, 12,500 shares under the 2014 Plan and 70,000 shares under the PSU Plan; |
| · | Post-Effective Amendment No. 1 to Registration Statement No. 333-214785, filed on November 23, 2016 with respect to 107,500 shares under the 2013 Plan and 175,000 shares under the 2014 Plan; |
| · | Post-Effective Amendment No. 1 to Registration Statement No. 333-204690, filed on June 3, 2015 with respect to 65,505 shares under the 2015 Plan; and |
| · | Post-Effective Amendment No. 1 to Registration Statement No. 333-196360, filed on May 29, 2014 with respect to 116,798 shares under the 2013 Plan and 12,500 shares under the 2014 Plan. |
No additional shares are being registered by this Post-Effective Amendment. Concurrently herewith, the Registrant is filing a Registration Statement on Form S-8 with the Commission to register the 2024 Plan New Shares.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Part I of Form S-8 is omitted from this Post-Effective Amendment in accordance with Rule 428 of the Securities Act of 1933, as amended (the “Securities Act”), and the instructions to Form S-8. The documents(s) containing the information specified in Part I of Form S-8 will be sent or made available to participants in the applicable plan as specified by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The Registrant hereby incorporates by reference into this Registration Statement the following documents filed with the Commission:
(a) the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed on March 28, 2024, which contains the audited financial statements of the Registrant for the latest fiscal year for which such statements have been filed;
(b) the Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2024, filed on May 14, 2024;
(c) the Registrant’s Current Reports on Form 8-K filed on January 16, 2024, February 20, 2024, March 26, 2024, April 16, 2024, April 26, 2024, June 14, 2024 and June 21, 2024 (excluding any portions of a report deemed to have been furnished under Item 2.02 or Item 7.01 and any exhibits included with such Items); and
(d) the description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form 8-A (Registration No. 001-36379) filed on March 26, 2014, pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendments or reports filed for the purpose of updating such description (including Exhibit 4.3 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed on March 28, 2024).
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14, or 15(d) of the Exchange Act after the date hereof, and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all the securities offered hereby have been sold or that deregisters the securities offered hereby then remaining unsold, shall also be deemed to be incorporated by reference into this Registration Statement and to be a 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 Commission shall not be deemed incorporated by reference into this Registration Statement.
Any statement contained in a document incorporated or deemed to be incorporated by reference in this Registration Statement 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 other subsequently filed document which also is or is deemed to be incorporated by reference in this Registration Statement modifies or supersedes that statement. Any 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. |
The following summary is qualified in its entirety by reference to the complete text of any statutes referred to below and the certificate of incorporation and the bylaws of the Registrant, as amended and/or restated from time to time.
Section 145 of the General Corporation Law of the State of Delaware (the “DGCL”) permits a Delaware corporation to indemnify any person 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 (other than an action by or in the right of the corporation) by reason of the fact that the person 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, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful.
In the case of an action by or in the right of the corporation, Section 145 of the DGCL similarly permits a Delaware corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by reason of the fact that the person 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, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses that the Court of Chancery or such other court shall deem proper.
Section 145 of the DGCL also permits a Delaware 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, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under Section 145 of the DGCL.
Article IX of the Registrant’s Second Amended and Restated Certificate of Incorporation, as amended, states that the Registrant’s directors shall not be personally liable to the Registrant or to its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Registrant or to its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. If the DGCL is amended after the date hereof to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of the Registrant’s directors shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
Article X of the Registrant’s Second Amended and Restated Certificate of Incorporation, as amended, authorizes the Registrant, to the fullest extent permitted by applicable law, to provide indemnification of (and advancement of expenses to) the Registrant’s directors, officers, employees and agents (and any other persons to which the DGCL permits the Registrant to provide indemnification) through bylaw provisions, agreements with such directors, officers, employees, agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the DGCL, subject only to limits created by the DGCL, with respect to actions for breach of duty to the Registrant, its stockholders, and others.
Article VI of the Registrant’s Amended and Restated Bylaws provides that the Registrant shall, to the maximum extent and in the manner permitted by the DGCL, indemnify each of the Registrant’s directors and officers against expenses (including attorneys’ fees), judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any proceeding arising by reason of the fact that such person is or was an agent of the Registrant. The right to indemnification conferred by Article VI is a contract right and includes the right to be paid by the Registrant the expenses incurred in defending any action or proceeding for which indemnification is required or permitted following authorization thereof by the Board of Directors and shall be paid in advance of the final disposition of such action or proceeding upon receipt of an undertaking by or on behalf of the indemnified party to repay such amount if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that the indemnified party is not entitled to be indemnified as authorized in Article VI. The Registrant maintains insurance, at its expense, to protect the Registrant and any of its directors, officers, employees or agents against any such expense, liability or loss, whether or not the Registrant has the power to indemnify such person.
As permitted by the DGCL, the Registrant has entered into indemnification agreements with each of its directors and executive officers that require the Registrant to indemnify such persons against various actions including, but not limited to, third-party actions where such director or executive officer, by reason of his or her corporate status, is a party or is threatened to be made a party to an action, or by reason of anything done or not done by such director in any such capacity. The Registrant intends to indemnify directors and executive officers against all costs, judgments, penalties, fines, liabilities, amounts paid in settlement by or on behalf of such directors or executive officers and for any expenses actually and reasonably incurred by such directors or executive officers in connection with such action, if such directors or executive officers acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the Registrant, and with respect to any criminal proceeding, had no reasonable cause to believe their conduct was unlawful. The Registrant also intends to advance to its directors and executive officers expenses (including attorneys’ fees) incurred by such directors and executive officers in advance of the final disposition of any action after the receipt by the Registrant of a statement or statements from directors or executive officers requesting such payment or payments from time to time, provided that such statement or statements are accompanied by an undertaking, by or on behalf of such directors or executive officers, to repay such amount if it shall ultimately be determined that they are not entitled to be indemnified against such expenses by the Registrant.
The indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification or advancement of expenses, including, among others, provisions about providing notice to the Registrant of any action in connection with which a director or executive officer seeks indemnification or advancement of expenses from the Registrant and provisions concerning the determination of entitlement to indemnification or advancement of expenses.
| Item 7. | Exemption from Registration Claimed. |
Not applicable.
| Item 8. | Exhibits. |
| Item 9. | 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:
(a) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(b) To reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement; and
(c) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(a) and (1)(b) above 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 this 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.
B. 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 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 this 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.
C. 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-8 and has duly caused this Post-Effective Amendment to the Prior Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Jose, State of California, on June 27, 2024.
| ENERGOUS CORPORATION | ||
| By: | /s/ Mallorie Burak | |
| Name: | Mallorie Burak | |
| Title: | Chief Financial Officer | |
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned officers and directors of Energous Corporation, a Delaware corporation, do hereby constitute and appoint Mallorie Burak (including any successor thereto as principal financial officer or principal executive officer), the lawful attorney-in-fact and agent with full power and authority to do any and all acts and things and to execute any and all instruments which said attorney and agent determines may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with the Prior Registration Statement and the Post-Effective Amendment thereto. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to the Post-Effective Amendment, to any and all amendments, both pre-effective and post-effective, and supplements to the Prior Registration Statement and the Post-Effective Amendment, and to any and all instruments or documents filed as part of or in conjunction with this Post-Effective Amendment or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms that all said attorneys and agents, or any one of them, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Post-Effective Amendment has been signed by the following persons in the capacities and on the dates indicated below.
| Signature | Title | Date | ||
| /s/ Mallorie Burak | Chief Financial Officer (Principal Executive | June 26, 2024 | ||
| Mallorie Burak | Officer, Principal Financial Officer and Principal Accounting Officer) | |||
| /s/ David Roberson | Director and Board Chair | June 26, 2024 | ||
| David Roberson | ||||
| /s/ J. Michael Dodson | Director | June 26, 2024 | ||
| J. Michael Dodson | ||||
| /s/ Rahul Patel | Director | June 26, 2024 | ||
| Rahul Patel |
EXHIBIT 5.1
 |  |
June 27, 2024
Energous Corporation
3590 North First Street, Suite 210
San Jose, California 95134
| Re: | Post-Effective Amendments to Registration Statements on Form S-8 of Shares of Stock, par value $0.00001 per share, of Energous Corporation |
Ladies and Gentlemen:
We have acted as counsel to Energous Corporation (the “Company”) in connection with the preparation of the following Post-Effective Amendments No. 1 to Registration Statements on Form S-8 (together, the “Post-Effective Amendment”) under the Securities Act of 1933, as amended (the “Act”), which the Company is filing with the Securities and Exchange Commission (the “Commission”) with respect to the Carryover Shares (as defined below) that are, or become, authorized for issuance under the 2024 Equity Incentive Plan (the “2024 Plan”):
| · | Post-Effective Amendment No. 1 to Registration Statement No. 333-278352 |
| · | Post-Effective Amendment No. 1 to Registration Statement No. 333-259621 |
| · | Post-Effective Amendment No. 1 to Registration Statement No. 333-248536 |
| · | Post-Effective Amendment No. 1 to Registration Statement No. 333-225396 |
| · | Post-Effective Amendment No. 1 to Registration Statement No. 333-214785 |
| · | Post-Effective Amendment No. 1 to Registration Statement No. 333-204690 |
| · | Post-Effective Amendment No. 1 to Registration Statement No. 333-196360 |
Stockholders of the Company approved the 2024 Plan on June 12, 2024 (the “Effective Date”), pursuant to which 456,000 shares of the Company’s common stock, par value $0.00001 per share (“Common Stock”), are available for issuance (the “2024 Plan New Shares”). In addition to the 2024 Plan New Shares, the total number of shares available for issuance under the 2024 Plan includes (i) an aggregate of 259,274 shares of Common Stock that were previously available for future awards under the Registrant’s 2013 Equity Incentive Plan, the Registrant’s 2014 Non-Employee Equity Compensation Plan and the Registrant’s Performance Share Unit Plan (the “Prior Plans”) as of the Effective Date and (ii) up to an aggregate of 26,191 shares of Common Stock subject to outstanding awards under the Prior Plans as of the Effective Date that, on or after the Effective Date, lapse, expire, terminate or are canceled prior to the issuance of shares thereunder (collectively, the “Carryover Shares”).
We have examined the Post-Effective Amendment and such documents and records of the Company as we have deemed necessary for the purposes of this opinion. In giving this opinion, we have assumed the authenticity of all instruments presented to us as originals, the conformity with originals of all instruments presented to us as copies and the genuineness of all signatures.
Based upon and subject to the foregoing, we are of the opinion that any Carryover Shares that may be issued by the Company pursuant to the 2024 Plan, upon registration by its registrar of such Carryover Shares and the issuance thereof by the Company in accordance with the terms of the 2024 Plan, and the receipt of consideration therefor in accordance with the terms of the 2024 Plan, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the Post-Effective Amendment. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
| Very truly yours, |
| /s/ Perkins Coie LLP |
EXHIBIT 23.1
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM’S CONSENT
We consent to the incorporation by reference in this Registration Statement of Energous Corporation on Form S-8 Amendment # 1 File No. 333-278352, 333-259621, 333-248536, 333-225396, 333-214785, 333-204690 and 333-196360 of our report dated March 28, 2024, with respect to our audits of the financial statements of Energous Corporation as of December 31, 2023 and 2022 and for the years ended December 31, 2023 and 2022 appearing in the Annual Report on Form 10-K of Energous Corporation for the year ended December 31, 2023. We were dismissed as auditors on April 11, 2024 and, accordingly, we have not performed any audit or review procedures with respect to any financial statements appearing in such Registration Statement for the periods after the date of April 11, 2024.
| /s/ Marcum LLP |
| Marcum LLP |
| San Jose, CA |
| June 26, 2024 |