Sec Form 13D Filing - SOFTBANK GROUP CORP. filing for ESS Tech Inc. (GWH) - 2021-10-25

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED

PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED

PURSUANT TO RULE 13d-2(a)

(Amendment No. )*

ESS Tech, Inc.

(Name of Issuer)

Common Stock, par value $0.0001 per share

(Title of Class of Securities)

26916J106

(CUSIP Number)

John T. Gaffney

Gibson, Dunn & Crutcher LLP

200 Park Avenue

New York, NY 10166-0193

(212) 351-4000

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

October 8, 2021

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box: ☐

Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (the “Exchange Act”) or otherwise subject to the liabilities of that section of the Exchange Act but shall be subject to all other provisions of the Exchange Act (however, see the Notes).

CUSIP No. 83406F102

(The terms used above are defined in Items 1, 2, 5 and 6 of this Schedule 13D).

CUSIP No. 83406F102

(The terms used above are defined in Items 1, 2, 5 and 6 of this Schedule 13D).

CUSIP No. 83406F102

(The terms used above are defined in Items 1, 2, 5 and 6 of this Schedule 13D).

CUSIP No. 83406F102

(The terms used above are defined in Items 1, 2, 5 and 6 of this Schedule 13D).

This Schedule 13D relates to the common stock, par value $0.0001 per share (the “Common Stock”), of ESS Tech, Inc., a Delaware corporation (the “Issuer”). The principal executive office of the Issuer is located at 26440 SW Parkway Ave., Bldg. 83 Wilsonville, Oregon 97070.

(a) (b)(c)(f) This Schedule 13D is being filed on behalf of SoftBank Group Corp., a Japanese kabushiki kaisha (“SoftBank”), SoftBank’s wholly owned subsidiary SoftBank Group Capital Ltd, a private limited company incorporated in England and Wales (“SBGC”), SBGC’s wholly owned subsidiary SB Energy Global Holdings Limited, a private limited company incorporated in England and Wales (“Holdings Limited”) and Holdings Limited’s wholly owned subsidiary SB Energy Global Holdings One Ltd., a private limited company incorporated in England and Wales (“Holdings One” and together with SoftBank, SBGC and Holdings Limited, the “Reporting Persons”).

The principal business address of SoftBank is 1-7-1, Kaigan, Minato-ku, Tokyo 105-7537 Japan. The principal business address of SBGC, Holdings Limited and Holdings One is 69 Grosvenor Street, London, England, United Kingdom W1K 3JP. SoftBank is a Japanese publicly traded holding company that manages its holdings and conducts its operations through various subsidiaries. SBGC, Holdings Limited and Holdings One are holding companies for various SoftBank investments.

(d)(e) The name, business address, citizenship and present principal occupation or employment of each executive officer and member of the Board of Directors of SoftBank, SBGCHoldings One and Holdings Limited are set forth on Appendix A-1, A-2, A-3 and A-4, respectively, and are incorporated herein by reference. During the last five years, none of the Reporting Persons nor, to the best of each Reporting Person’s knowledge, any person on Appendices A-1, A-2, A-3 and A-4, has been (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which proceeding such Reporting Person or person is or was subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

The information set forth in Item 6 of this Schedule 13D is hereby incorporated by reference.

Purpose of the Transaction

The information set forth in Item 6 of this Schedule 13D, including without limitation information as to the rights and obligations of the Reporting Persons pursuant to the terms of the Merger Agreement, Stockholder’s Agreement, Registration Rights Agreement and Irrevocable Proxy Agreement (each as defined in Item 6), and the other matters described therein, is hereby incorporated by reference.

Plan or Proposals

Each of the Reporting Persons acquired the securities reported herein for investment purposes.

Mr. Rich Hossfeld currently serve as a member of the board of directors of the Issuer. Mr. Hossfeld is an executive officer of Holdings One.

Although the Reporting Persons do not currently have any specific plan or proposal to acquire or dispose of the securities reported herein (except as otherwise described in this Schedule 13D), each Reporting Person, consistent with its investment purpose and subject to the agreements described in Item 6 below, at any time and from time to time may acquire shares of Common Stock or securities convertible, exchangeable or exercisable for or into shares of Common Stock or dispose of any or all of the shares of Common Stock it holds (including, without limitation, transferring such shares of Common Stock to affiliated transferees, or entering into derivative, borrowing or lending transactions), depending upon an ongoing evaluation of its investment in the shares of Common Stock, the price and availability of the Issuer’s securities, the Issuer’s business and the Issuer’s prospects, applicable legal restrictions, prevailing market conditions, other investment opportunities, tax considerations, liquidity requirements of such Reporting Person and/or other investment considerations. Subject to the terms of the agreements described herein, the Reporting Persons may request or demand a registration statement be filed by the Issuer and be made available and effective so that they may, if they later decide, deliver to the Issuer take-down notices in connection therewith or otherwise to sell Issuer securities utilizing such registration statement.

Each Reporting Person, solely in its capacity as a shareholder or other security holder of the Issuer, may engage in communications with one or more other shareholders or other securityholders of the Issuer, one or more officers of the Issuer and/or one or more members of the board of directors of the Issuer and/or one or more representatives of the Issuer regarding the Issuer, including but not limited to its operations. Each of the Reporting Persons, in its capacity as a shareholder or other security holder of the Issuer, may discuss ideas that, if effected, may relate to or result in any of the matters listed in Items 4(a)-(j) of Schedule 13D.

Other than as described above, none of the Reporting Persons nor, to the knowledge of each Reporting Person, any individuals listed in Appendices A-1, A-2, A-3 and A-4 attached hereto, currently has any plans or proposals that relate to, or would result in, any of the matters listed in Items 4(a) through (j) of Schedule 13D, although the Reporting Persons may, at any time and from time to time, review or reconsider their position, change their purpose and/or formulate plans or proposals with respect thereto. As a result of these activities, one or more of the Reporting Persons may suggest or take a position with respect to potential changes in the operations, management, or capital structure of the Issuer as a means of enhancing shareholder value. Such suggestions or positions may include one or more plans or proposals that relate to or would result in any of the actions described in Items 4(a) through (j) of Schedule 13D.

(a)-(b) The information contained in lines 7 to 11 and 13 of the cover pages of this Schedule 13D and the information set forth in Item 6 is incorporated herein by reference. The percentage ownership reflected in line 13 of the cover pages is based on 135,058,074 shares of Common Stock outstanding as of October 8, 2021.

As Holdings One is a wholly owned subsidiary of Holdings Limited, which is a wholly owned subsidiary of SBGC, which is a wholly owned subsidiary of SoftBank, each of Holdings Limited, SBGC and SoftBank may be deemed to indirectly beneficially own the shares of Common Stock directly beneficially owned by Holdings One. Each of Holdings Limited, SBGC and SoftBank disclaim beneficial ownership of all such shares of Common Stock, except to the extent of their respective pecuniary interest.

(c) Other than as described in this Item 5, neither the Reporting Persons nor, to the Reporting Persons’ knowledge, any of the persons set forth on Appendices A-1, A-2, A-3 and A-4, has effected any transaction in shares of Common Stock during the past sixty (60) days.

(d) To the knowledge of the Reporting Persons, no other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds of the sale of, the securities that are the subject of this Schedule 13D.

(e) Not applicable.

Merger Agreement

Pursuant to the Agreement and Plan of Merger, dated May 6, 2021 (the “Merger Agreement”), by and among ACON S2 Acquisition Corp., a Delaware corporation (“STWO”), SCharge Merger Sub, Inc., a Delaware corporation and wholly owned direct subsidiary of STWO (“Merger Sub”), and ESS Tech, Inc., a Delaware corporation (“ESS”), on October 8, 2021, Merger Sub merged with and into ESS, with ESS continuing as the surviving entity and as a wholly owned subsidiary of STWO (the “Business Combination”). In connection with the completion of the Business Combination (the “Closing”), the name of STWO was changed to ESS Tech, Inc.

Pursuant to the Merger Agreement, at the effective time of the Business Combination, Holdings One received 31,714,972 shares of Common Stock.

Stockholder’s Agreement

On May 6, 2021, Holdings One, the Issuer and Breakthrough Energy Ventures, LLC entered into a stockholder’s agreement (the “Stockholder’s Agreement”) pursuant to which the parties agreed, among other things, (i) that each of Holdings One and Breakthrough Energy Ventures, LLC would have one designee on the Issuer’s initial board of directors, and (ii) that each of Holdings One and Breakthrough Energy Ventures, LLC will continue to be entitled to designate a member of the Issuer’s board of directors until it beneficially owns less than five percent of the issued and outstanding voting stock of the Issuer.

Registration Rights Agreement

On October 8, 2021, Holdings One entered into a registration rights agreement (the “Registration Rights Agreement”) with the Issuer providing, among other things, certain customary registration rights, demand rights and piggyback rights with respect to the Common Stock of the Issuer held by Holdings One.

Irrevocable Proxy Agreement

In connection with the Business Combination, ESS and Holdings One Ltd. filed a joint Committee on Foreign Investment in the United States (“CFIUS”) notice in August 2021 seeking CFIUS’s approval of Holdings One’s acquisition of certain voting shares, as well as certain deferred information and governance rights, in the Issuer (the “CFIUS Approval”). ESS and Holdings One agreed to use their reasonable best efforts to satisfy CFIUS and provide any documentation or information requested or required by CFIUS prior to Closing, but the receipt of CFIUS approval was not a condition to Closing.

In anticipation of Closing, ESS, STWO, and Holdings One entered into an irrevocable proxy and power of attorney agreement, dated as of September 30, 2021 (the “Irrevocable Proxy Agreement”), pursuant to which certain rights of Holdings One are subject to receipt of the CFIUS Approval. In particular, Holdings One granted the Secretary of the Issuer an irrevocable proxy to vote its shares of Common Stock that represent more than 9.9% of all issued and outstanding shares of Common Stock pro rata in the same manner and proportion as how the other holders of Common Stock vote their shares. Such proxy shall remain in place for all shares of Common Stock held by Holdings One above 9.9% of all issued and outstanding shares until the CFIUS Approval is obtained, at which time it shall continue in place but with a revised threshold, applying to all shares of Common Stock held by Holdings One above 19.9% of all issued and outstanding shares of Common Stock.

The foregoing description of the Business Combination and associated transactions and agreements does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, which is filed as Exhibit 1 to this Schedule 13D, the Stockholder’s Agreement, which is filed as Exhibit 2 to this Schedule 13D, the Registration Rights Agreement, which is filed as Exhibit 3 to this Schedule 13D and the Irrevocable Proxy Agreement, which is filed as Exhibit 4 to this Schedule 13D.

SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: October 25, 2021

APPENDIX A-1

EXECUTIVE OFFICERS AND DIRECTORS

OF

SOFTBANK GROUP CORP.

Set forth below is a list of each executive officer and director of SoftBank Group Corp. setting forth the citizenship, business address and present principal occupation or employment (and the name and address of any corporation or organization in which such employment is conducted) of each person.

APPENDIX A-2

EXECUTIVE OFFICERS AND DIRECTORS

OF

SOFTBANK GROUP CAPITAL LIMITED

Set forth below is a list of each executive officer and director of SoftBank Group Capital Limited setting forth the citizenship, business address and present principal occupation or employment (and the name and address of any corporation or organization in which such employment is conducted) of each person.

APPENDIX A-3

EXECUTIVE OFFICERS AND DIRECTORS

OF

SB ENERGY GLOBAL HOLDINGS ONE LIMITED

Set forth below is a list of each executive officer and director of SB Energy Global Holdings One Limited setting forth the citizenship, business address and present principal occupation or employment (and the name and address of any corporation or organization in which such employment is conducted) of each person.

APPENDIX A-4

EXECUTIVE OFFICERS AND DIRECTORS

OF

SB ENERGY GLOBAL HOLDINGS LIMITED

Set forth below is a list of each executive officer and director of SB Energy Global Holdings Limited setting forth the citizenship, business address and present principal occupation or employment (and the name and address of any corporation or organization in which such employment is conducted) of each person.