Form S-8 POS ClearSign Technologies

As filed with the U.S. Securities and Exchange Commission on July 2, 2021

 

Registration No. 333-184884

Registration No. 333-204129

Registration No. 333-228267

Registration No. 333-238613

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

Post-Effective Amendment No. 1 to Form S-8 Registration Statement No. 333-184884

Post-Effective Amendment No. 1 to Form S-8 Registration Statement No. 333-204129

Post-Effective Amendment No. 1 to Form S-8 Registration Statement No. 333-228267

Post-Effective Amendment No. 1 to Form S-8 Registration Statement No. 333-238613

 

UNDER THE SECURITIES ACT OF 1933

 

ClearSign Technologies Corporation

(Exact name of Registrant as specified in its charter)

 

Washington	26-2056298
(State or other jurisdiction of incorporation or organization)	(IRS Employer Identification Number)
12870 Interurban Avenue South, Seattle, WA	98168
(Address of Principal Executive Offices)	(Zip Code)

 

ClearSign Technologies Corporation 2011 Equity Incentive Plan, as amended

ClearSign Technologies Corporation 2021 Equity Incentive Plan

(Full title of the plan)

 

Brian Fike

Chief Financial Officer

ClearSign Technologies Corporation

12870 Interurban Avenue South

Seattle, Washington 98168

(206) 673-4848

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

 

Copies to:

Nimish Patel, Esq.

Blake Baron, Esq.

Mitchell Silberberg & Knupp LLP

2049 Century Park East, 18th Floor

Los Angeles, California 90067

Phone: (310) 312-3258

 

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

 

ClearSign Technologies Corporation (the “Registrant”) has previously registered shares of the Registrant’s common stock, par value $0.0001 per share (the “Common Stock”), to be issued under the 2011 Equity Incentive Plan, as amended (the “2011 Plan”). In connection with the 2011 Plan, the Registrant has previously filed with the Securities and Exchange Commission (the “SEC”) a Registration Statement on Form S-8 on November 13, 2012 (File No. 333-184884), a Registration Statement on Form S-8 on May 13, 2015 (File No. 333-204129), a Registration Statement on Form S-8 on November 8, 2018 (File No. 333-228267), and a Registration Statement on Form S-8 on May 22, 2020 (File No. 333-238613) (collectively, the “Registration Statements”).

 

On June 17, 2021 (the “Approval Date”), the stockholders of the Registrant approved the 2021 Equity Incentive Plan (the “2021 Plan”). Pursuant to the terms of the 2021 Plan, the maximum number of shares of Common Stock that may be issued under the 2021 Plan shall be the sum of (i) 3,125,466 newly available shares of Common Stock (the “New Shares”), and (ii) any shares subject to stock options or similar awards granted under the 2011 Plan as of the Approval Date that, after the Approval Date, expire or otherwise terminate without having been exercised in full and shares issued pursuant to awards granted under the 2011 Plan as of the Approval Date that, after the Approval Date, are forfeited to or are repurchased by the Company (the “Carryover Shares”), with the maximum number of Carryover Shares to be added to the 2021 Plan pursuant to the 2011 Plan equal to 3,512,619 shares. As of the Approval Date, there were 3,381,369 Carryover Shares. No further awards will be granted under the 2011 Plan as it expired on January 27, 2021.

 

The Registration Statements will cover the issuance of the Carryover Shares once they are available for issuance under the 2021 Plan. The Registration Statements otherwise continue in effect as to the balance of the shares of Common Stock remaining available for issuance upon exercise of outstanding awards and the following the exercise of awards previously granted under the 2011 Plan.

 

Accordingly, pursuant to the undertaking in Item 512(a)(1)(iii) of Regulation S-K that the Registrant disclose a material change in the plan of distribution as it was originally disclosed in the Registration Statements and SEC Compliance and Disclosure Interpretation 126.43, the Registrant is filing this Post-Effective Amendment to the Registration Statements (the “Post-Effective Amendment”) to reflect that, as of the Approval Date, the Carryover Shares may be issued under the 2021 Plan and to file as an exhibit hereto a copy of the 2021 Plan and a new opinion as to the validity of the shares of Common Stock that were previously issuable pursuant to the 2011 Plan. All other items of the Registration Statements are incorporated herein by reference without change.

 

Contemporaneously with the filing of this Post-Effective Amendment, the Registrant is filing a registration statement on Form S-8 to register the New Shares that have become available for offer or sale pursuant to the 2021 Plan. No additional securities are being registered by this Post-Effective Amendment.

 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The Registrant incorporates by reference into this Registration Statement the following documents:

 

(a)

The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed with the Commission on March 31, 2021, as amended by Amendment No. 1 on Form 10-K/A filed with the Commission on April 30, 2021;

 

 

(b)

The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2021, filed with the Commission on May 17, 2021;

 

(c)

The Registrant’s Current Reports on Form 8-K, filed with the Commission on March 8, 2021, March 25, 2021, March 31, 2021, April 23, 2021, and June 21, 2021; and

 

(d)

The description of the Registrant’s Common Stock set forth in Exhibit 4.2 of the Registrant’s Annual Report for the fiscal year ended December 31, 2019 on Form 10-K filed with the Commission on March 30, 2020, including any future amendment or report filed for the purpose of updating such description.

 

All documents subsequently 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, (which does not include information furnished pursuant to Item 2.02 or Item 7.01 of any Current Report on Form 8-K, unless expressly stated therein) after the date of this Registration Statement, but prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered by this Registration Statement have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement. Each document incorporated by reference into this Registration Statement shall be deemed to be a part of this Registration Statement from the date of the filing of such document with the Commission until the information contained therein is superseded or updated by any subsequently filed document which is incorporated by reference into 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.

 

Sections 23B.08.500 through 23.B.08.603 of the Washington Business Corporation Act (the “WBCA”) authorize a court to award, or a corporation’s board of directors to grant, indemnification to directors and officers on terms sufficiently broad to permit indemnification under certain circumstances for liabilities arising under the Securities Act of 1933, as amended (the “Securities Act”). Section 23B.08.320 of the WBCA authorizes a corporation to limit a director’s liability to the corporation or its shareholders for monetary damages for acts or omissions as a director, except in certain circumstances involving intentional misconduct, knowing violations of law or illegal corporate loans or distributions, or any transaction from which the director personally receives a benefit in money, property or services to which the director is not legally entitled.

 

The Registrant’s Articles of Incorporation provide that, to the fullest extent permitted by Washington law, the Registrant’s directors will not be liable to the Registrant or its shareholders for monetary damages. This provision, however, does not eliminate or limit liability for acts or omissions that involve intentional misconduct or a knowing violation of law by a director, for conduct violating WBCA section 23B.08.310 (approval of an unlawful distribution) or for any transaction from which the director will personally receive a benefit in money, property, or services to which the director is not legally entitled. Pursuant to section 23B.08.52 of the WBCA, because the Registrant’s Articles of Incorporation do not limit the obligation, the Registrant must indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because of being a director against reasonable expenses incurred by the director in connection with the proceeding.

 

The Registrant’s Bylaws further provide that each person who was, is or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit, claim or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal, by reason of the fact that he or she is or was a director or officer of the Registrant or was serving at the Registrant’s request as a director, officer, partner, trustee, employee or agent of another entity, shall be indemnified and held harmless against all losses, claims, damages, liabilities and expenses actually and reasonably incurred or suffered in connection with the proceeding.

 

 

This indemnification right continues even after the individual has ceased to be a director or officer or to serve at the Registrant’s request as a director, officer, partner, trustee, employee or agent of another entity. However, if the person indemnified initiates the proceeding, he or she shall be entitled to indemnification only if the proceeding was authorized or ratified by the Registrant’s board of directors. No indemnification will be provided for acts or omissions finally adjudged to be intentional misconduct or a knowing violation of law, for conduct finally adjudged to be in violation of WBCA section 23B.08.310, for any transaction with respect to which it was finally adjudged that the indemnitee personally received a benefit in money, property or services to which the indemnitee was not legally entitled or if the Registrant is otherwise prohibited by applicable law from paying indemnification. The Registrant must advance expenses to an indemnitee for an indemnification obligation so long as the Registrant receives an undertaking by or on behalf of the indemnitee to repay all amounts so advanced if it is determined by a final judicial decision from which there is no further right to appeal that the indemnitee is not entitled to be indemnified.

 

Under the Registrant’s Director and Officer Insurance Policy, directors and officers are provided liability coverage of $5 million subject to retention. The policy has a one year term with annual renewal possible. The policy can be terminated by the insured if there is a merger or acquisition which includes a change in ownership of 50% of the voting shares. Upon such an occurrence the insurer may elect to cancel the policy. The Registrant may elect to then obtain “run off” insurance for a period of between one and six years at a cost of between 125% and 225% of the initial policy premium. The policy is a claim made policy. It covers only those claims made during the policy term. If an act giving rise to a claim occurs during the policy term, but the claim is not reported within 60 days of the termination or expiration policy, the claim will not be covered.

 

The Registrant has entered into, and will enter into in the future, indemnification agreements with the individuals who serve as its officers and directors. Pursuant to these agreements, the Registrant will indemnify officers and directors who are made parties to, or threatened to be made parties to, any proceeding by reason of the fact that they are or were officers or directors, or are or were serving at the Registrant's request as a director, officer, employee, or agent of another entity. The agreements require the Registrant to indemnify its officers and directors against all expenses, judgments, fines and penalties actually and reasonably incurred by them in connection with the defense or settlement of any such proceeding, subject to the terms and conditions of the agreements.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

EXHIBIT INDEX

 

Exhibit No.		Description of Document
4.1		Articles of Incorporation of ClearSign Technologies Corporation (1)
4.2		Bylaws of ClearSign Technologies Corporation (2)
4.2.1		Amendment to Bylaws (3)
4.3		Form of Common Stock Certificate (4)
5.1.		Opinion of Mitchell Silberberg & Knupp LLP (filed herewith)
23.1.		Consent of Gumbiner Savett Inc. (filed herewith)
23.2.		Consent of Mitchell Silberberg & Knupp LLP (included in Exhibit 5.1)
99.1		ClearSign Technologies Corporation 2011 Equity Incentive Plan (2)
99.2		ClearSign Technologies Corporation 2021 Equity Incentive Plan (5)

(1)       Incorporated herein by reference from the Registrant’s Form 10-Q for the quarter ended September 30, 2019 filed with the Securities and Exchange Commission on November 13, 2019.

 

 

(2)       Incorporated herein by reference from the Registrant’s registration statement on Form S-1, as amended, file number 333-177946, originally filed with the Securities and Exchange Commission on November 14, 2011.

 

(3)       Incorporated herein by reference from the Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 12, 2019.

 

(4)       Incorporated herein by reference from the Registrant’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on February 26, 2015.

 

(5)       Incorporated herein by reference from Appendix A to the Registrant’s Proxy Statement on Schedule 14A, filed with the Securities and Exchange Commission on May 7, 2021.

 

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:

 

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 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

 

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)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-8, and 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 Securities Exchange Act of 1934 that are incorporated by reference in the 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 section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 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 registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Seattle, State of Washington, on July 2, 2021.

 

 

	CLEARSIGN TECHNOLOGIES CORPORATION
	By:	/s/ Colin James Deller
		Colin James Deller, Chief Executive Officer
	By	/s/ Brian G. Fike
		Brian G. Fike, Chief Financial Officer

 

 

POWER OF ATTORNEY

 

We, the undersigned officers and directors of ClearSign Technologies Corporation (the “Company”), hereby constitute and appoint Colin James Deller and Brian G. Fike and each of them, the true and lawful agents and attorneys-in-fact of the undersigned with full power and authority in said agents and attorneys-in-fact, and in any one or more of them, to sign for the undersigned and in their respective names as an officer/director of the Company, a registration statement on Form S-8 (or other appropriate form) relating to the offer and sale of common stock of the Company pursuant to this Registration Statement and any amendments thereto and file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, and with full power of substitution; hereby ratifying and confirming all that each of said attorneys-in-fact, or his/her substitute or substitutes, may 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/ Colin James Deller		Chief Executive Officer and Director		July 2, 2021
Colin James Deller		(Principal Executive Officer)
/s/ Brian G. Fike		Chief Financial Officer		July 2, 2021
Brian G. Fike		(Principal Financial and Accounting Officer)
/s/ Robert T. Hoffman Sr.		Director		July 2, 2021
Robert T. Hoffman Sr.
/s/ Judith S. Schrecker		Director		July 2, 2021
Judith S. Schrecker
/s/ Susanne L. Meline		Director		July 2, 2021
Susanne L. Meline
/s/ Bruce A. Pate		Director		July 2, 2021
Bruce A. Pate

 

 

 

Exhibit 5.1

 

Mitchell Silberberg & Knupp llp A Law Partnership Including Professional Corporations

 

July 2, 2021

 

Board of Directors
ClearSign Technologies Corporation

12870 Interurban Avenue South

Seattle, Washington 98168

 

Re:

Post-Effective Amendment to Registration Statements on Form S-8

 

Ladies and Gentlemen:

 

We have examined the Post-Effective Amendment to the Registration Statements on Form S-8 to be filed by you with the Securities and Exchange Commission on July 2, 2021 (the “Registration Statement”) in connection with the registration under the Securities Act of 1933, as amended, which you are filing with respect to the Carryover Shares (as defined below) authorized for issuance under the 2011 Plan (as defined below).

 

The Registration Statement reflects that on June 17, 2021 (the “Approval Date”), the stockholders of the ClearSign Technologies Corporation, a Washington corporation (the “Company”) approved the 2021 Equity Incentive Plan (the “2021 Plan”). Pursuant to the terms of the 2021 Plan, the maximum number of shares of the Company’s common stock, par value $0.0001 per share (“Common Stock”) that may be issued under the 2021 Plan shall be the sum of (i) 3,125,466 newly available shares of Common Stock, and (ii) any shares subject to stock options or similar awards granted under the 2011 Plan as of the Approval Date that, after the Approval Date, expire or otherwise terminate without having been exercised in full and shares issued pursuant to awards granted under the 2011 Plan as of the Approval Date that, after the Approval Date, are forfeited to or are repurchased by the Company (the “Carryover Shares”), with the maximum number of Carryover Shares to be added to the 2021 Plan pursuant to the 2011 Plan equal to 3,512,619 shares of Common Stock. The total number of shares of Common Stock of the Company authorized for issuance under the 2021 Plan is 6,638,085.

 

For purposes of this opinion letter, we have examined the 2011 Plan, the 2021 Plan, the Registration Statement, the Articles of Incorporation and the Bylaws of the Company, as amended or restated, the proceedings and other actions of the Company that provide for the issuance of the Carryover Shares, and such other documents and matters as we have deemed necessary for purposes of rendering this opinion. As your legal counsel, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with the sale and issuance of the Carryover Shares under the 2021 Plan. We have assumed the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of all documents submitted to us as copies. We have also assumed the legal capacity of all natural persons who have executed documents examined by us, the genuineness of all signatures on all documents examined by us, the authority 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. In rendering the opinion set forth below, we have assumed that certificates evidencing the Carryover Shares will be signed by the authorized officers of the Company and registered by the transfer agent and registrar and will conform to the specimen certificate for the Common Stock. In addition, we have assumed that the resolutions of the Company’s board of directors or its applicable committee authorizing the Company to issue and deliver the Carryover Shares will be in full force and effect at all times at which such Carryover Shares are issued and delivered by the Company, and that the Company will take no action inconsistent with such resolutions.

 

It is our opinion that, when issued and sold in the manner referred to in the 2021 Plan and pursuant to the standard practices which accompany any sale under the 2021 Plan, the Carryover Shares will be legally and validly issued, fully paid, and nonassessable.

 

 

We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever it appears in the Registration Statement and any amendment thereto. In giving our consent we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended.

 

	Sincerely,
	/s/ Mitchell Silberberg & Knupp LLP
	Mitchell Silberberg & Knupp LLP

 

 

Exhibit 23.1

 

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in the Post-Effective Amendment No. 1 to Registration Statement Nos. 333-184884, 333-204129, 333-228267, and 333-238613 on Form S-8 of ClearSign Technologies Corporation and subsidiary (the “Company”) of our report dated March 31, 2021 with respect to the audited consolidated financial statements of the Company for the years ended December 31, 2020 and 2019, which is contained in the annual report on Form 10-K filed on March 31, 2021.

 

 

/s/ Gumbiner Savett Inc.

 

July 2, 2021

Santa Monica, California

 

 

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