UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
(Amendment No. 1)
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF
THE SECURITIES EXCHANGE ACT OF 1934
CLEARSIGN TECHNOLOGIES
CORPORATION
(Exact name of registrant as specified in its charter)
| Delaware |
|
26-2056298 |
| (State of incorporation or organization) |
|
(I.R.S. Employer Identification No.) |
| |
|
|
8023 E. 63rd Place, Suite 101
Tulsa, Oklahoma |
|
74133 |
| (Address of principal executive offices) |
|
(Zip Code) |
Securities to be registered pursuant to Section 12(b) of
the Act:
Title of each class
to be so registered |
|
Name of each exchange on which
each class is to be registered |
| Common Stock, par value $0.0001 per share |
|
Nasdaq Stock Market LLC |
If this form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General Instruction A.(c) or (e), check the following
box. x
If this form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General Instruction A.(d) or (e), check the following
box. ¨
If this form relates to the registration of a class of securities concurrently
with a Regulation A offering, check the following box. ¨
Securities Act registration statement file number to which this form
relates: None
Securities to be registered pursuant to Section 12(g) of
the Act: None
EXPLANATORY NOTE
This Amendment No. 1
to Form 8-A is being filed in connection with the reincorporation of ClearSign Technologies Corporation (the “Company”)
from the State of Washington to the State of Delaware (the “Reincorporation”) pursuant to a plan of conversion, dated June
14, 2023 (the “Plan of Conversion”). The Reincorporation became effective on June 15, 2023 and was accomplished by the filing
of (i) articles of entity conversion with the Washington Secretary of State; (ii) a certificate of conversion with the Secretary
of State of the State of Delaware; and (iii) a certificate of incorporation with the Secretary of State of the State of Delaware
(the “Certificate of Incorporation”). Pursuant to the Plan of Conversion, the Company also adopted new bylaws (the “Bylaws”).
The Company hereby amends the following items, exhibits or other portions of its Form 8-A originally filed on April 23, 2012 with
the Securities and Exchange Commission (the “SEC”) regarding the description of common stock as set forth herein.
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant’s Securities to be Registered.
Our Certificate of Incorporation
authorized capital stock consists of 64,500,000 shares, $0.0001 par value per share, consisting of: (i) 62,500,000 shares of common stock;
and (ii) 2,000,000 shares of preferred stock.
Common Stock
Dividend Rights
The General Corporation Law
of the State of Delaware (the “DGCL”) permits a corporation to declare and pay dividends out of “surplus”
or, if there is no “surplus,” out of its net profits for the fiscal year in which the dividend is declared and/or the preceding
fiscal year. “Surplus” is defined as the excess of the net assets of the corporation over the amount determined to be the
capital of the corporation by the board of directors. The capital of the corporation is typically calculated to be (and cannot be less
than) the aggregate par value of all issued shares of capital stock. Net assets equals the fair value of the total assets minus total
liabilities. The DGCL also provides that dividends may not be paid out of net profits if, after the payment of the dividend, capital is
less than the capital represented by the outstanding stock of all classes having a preference upon the distribution of assets. Delaware
common law also imposes a solvency requirement in connection with the payment of dividends.
Subject to applicable law
and the rights and preferences of any holders of any outstanding series of preferred stock, the holders of common stock will be entitled
to the payment of dividends on the common stock when, as and if declared by the Company’s board of directors (“Board”)
in accordance with applicable law.
Voting Rights
Holders of common stock will
be entitled to one vote for each share held as of the record date for determining stockholders entitled to vote on such matters, except
as otherwise required by law.
Right to Receive Liquidation Distributions
Subject to the rights and
preferences of any holders of any shares of any outstanding series of preferred stock, in the event of any liquidation, dissolution or
winding up of the Company, the funds and assets of the Company that may be legally distributed to the stockholders will be distributed
among the holders of the then outstanding common stock pro rata in accordance with the number of shares of common stock held by each such
holder.
Other Matters
All outstanding shares of
the common stock will be fully paid and nonassessable. The common stock will not be entitled to preemptive rights and will not be subject
to redemption or sinking fund provisions.
Preferred Stock
The
Certificate of Incorporation provides that shares of preferred stock may be issued from time to time in one or more series. The Board
will be authorized to fix the voting rights, if any, designations, powers, preferences, the relative, participating, optional or other
special rights and any qualifications, limitations and restrictions thereof, applicable to the shares of each series. The Board will be
able to, without stockholder approval, issue preferred stock with voting and other rights that could have anti-takeover effects.
The ability of the Board to issue preferred stock without stockholder approval could have the effect of delaying, deferring or preventing
a change of control of us or the removal of existing management. We have no preferred stock outstanding at the date hereof. Although we
do not currently intend to issue any shares of preferred stock, we cannot assure you that we will not do so in the future.
Anti-Takeover Provisions
Certain provisions of Delaware
law, the Certificate of Incorporation, and the Bylaws, which are summarized below, may have the effect of delaying, deferring, or discouraging
another person from acquiring control of the Company. They are also designed, in part, to encourage persons seeking to acquire control
of the Company to negotiate first with the Board.
Removal of Directors
Subject to the special rights
of the holders of one or more outstanding series of preferred stock to elect directors, the Certificate of Incorporation provides that
directors may be removed from office at any time, with or without cause, only by the affirmative vote of the holders of at least a majority
of the voting power of all of the then outstanding shares of voting stock of the Company entitled to vote at an election of directors.
Board of Directors Vacancies
Subject to the special rights
of the holders of one or more outstanding series of preferred stock to elect directors, and except as otherwise provided by law, our Certificate
of Incorporation authorizes only a majority of the remaining members of the Board (other than any directors elected by the separate vote
of one or more outstanding series of preferred stock), even though less than a quorum, to fill vacant directorships, including newly created
seats. In addition, the number of directors constituting the Board will be permitted to be set only by a resolution of the Board. These
provisions would prevent a stockholder from increasing the size of the Board and then gaining control of the Board by filling the resulting
vacancies with its own nominees. This will make it more difficult to change the composition of the Board and will promote continuity of
management.
Stockholder Action; Special Meeting of Stockholders
Our Bylaws provide that the
our stockholders may take any action required or permitted to be taken at an annual or special meeting of stockholders by written consent
in lieu of a meeting. The Certificate of Incorporation and Bylaws further provide that special meetings of the Company’s stockholders
may be called only by the chairman of the Board, the Chief Executive Officer of the Company or the Board pursuant to a resolution adopted
by a majority of Board, and may not be called by any other person, including the Company’s stockholders.
Section 203 of the DGCL
We have opted out of Section
203 of the DGCL under our Certificate of Incorporation. As a result, pursuant to our Certificate of Incorporation, we are prohibited from
engaging in any business combination with any stockholder for a period of three years following the time that such stockholder (the “interested
stockholder”) came to own at least 15% of our outstanding voting stock (the “acquisition”), except if:
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The Board approved the acquisition prior to its consummation; |
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the interested stockholder owned at least 85% of the outstanding voting stock upon consummation of the acquisition; or |
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the acquisition is approved by our board of directors, and by the affirmative vote of at least two-thirds vote of the non-interested stockholders in a meeting. |
The restrictions described
above will apply subject to certain exceptions, including if a stockholder becomes an interested stockholder inadvertently and, as soon
as practicable, divests itself of ownership of such shares so that the stockholder ceases to be an interest stockholder, and, within the
three (3) year period, that stockholder has not become an interested stockholder but for such inadvertent acquisition of ownership. Generally,
a “business combination” or “acquisition” includes any merger, consolidation, asset or stock sale or certain other
transactions resulting in a financial benefit to the interested stockholder. Subject to certain exceptions, an “interested stockholder”
is a person who, together with that person’s affiliates and associates, owns, or within the previous three years owned, 15% or more
of our outstanding voting stock.
Our Certificate of Incorporation
provisions that elect to opt out of Section 203 of the DGCL may make it more difficult for a person who would be an “interested
stockholder” to effect various business combinations with us for a three-year period. This may encourage companies interested in
acquiring us to negotiate in advance with our board of directors because the stockholder approval requirement would be avoided if our
board of directors approves the acquisition which results in the stockholder becoming an interested stockholder. This may also have the
effect of preventing changes in our board of directors and may make it more difficult to accomplish transactions which stockholders may
otherwise deem to be in their best interests.
Advance Notice Requirements for Stockholder
Proposals and Director Nominations
The Bylaws provide that the
Company’s stockholders seeking to bring business before the Company’s annual meeting of stockholders, or to nominate candidates
for election as directors at the Company’s annual or a special meeting of stockholders must provide timely notice of their intent
in writing. To be timely, a stockholder’s notice must be received by the Secretary at the Company’s principal executive offices
(i) in the case of an annual meeting, not later than the close of business on the 90th day nor earlier than the close
of business on the 120th day before the anniversary date of the immediately preceding annual meeting of stockholders (subject
to certain exceptions), and (ii) in the case of a special meeting of stockholders called for the purpose of electing directors, not
later than the close of business on the 10th day following the day on which public announcement of the date of the
special meeting is first made by the Company. The Bylaws also specify certain requirements as to the form and content of a stockholders’
meeting. These provisions may preclude the Company stockholders from bringing matters before an annual meeting of stockholders or from
making nominations for directors at an annual meeting of stockholders.
No Cumulative Voting
The DGCL provides that stockholders
are not entitled to cumulate votes in the election of directors unless a corporation’s Certificate of Incorporation provides otherwise.
Our Certificate of Incorporation does not provide for cumulative voting.
Amendment of Certificate of Incorporation
Provisions
Amendments to the provisions
of the Certificate of Incorporation related to restrictions on any business combination with any interested stockholder and indemnification
of directors and officers of the Company require the affirmative vote of the holders of at least sixty six and two-thirds percent (66
and 2/3%) of the total voting power of all the then outstanding shares of stock of the Company entitled to vote thereon, voting together
as a single class.
Authorized but Unissued Capital Stock
Our authorized but unissued
common stock and preferred stock are available for future issuances without stockholder approval and could be utilized for a variety of
corporate purposes, including future offerings to raise additional capital, acquisitions and employee benefit plans. The existence of
authorized but unissued and unreserved common stock and preferred stock could render more difficult or discourage an attempt to obtain
control of the Company by means of a proxy contest, tender offer, merger or otherwise.
Exclusive Forum
The Certificate of Incorporation
provides that, unless the Company consents in writing to the selection of an alternative forum, the Court of Chancery of the State of
Delaware (or, if the Court of Chancery does not have jurisdiction, the federal district court for the District of Delaware or other state
courts of the State of Delaware) and any appellate court thereof shall, to the fullest extent permitted by law, be the sole and exclusive
forum for: (i) any derivative action, suit or proceeding (“Proceeding”) brought on behalf of the Company; (ii) any
Proceeding asserting a claim of breach of a fiduciary duty owed by any of the Company’s directors, officers, or stockholders to
the Company or its stockholders; (iii) any Proceeding arising pursuant to any provision of the DGCL, Certificate of Incorporation
or the Bylaws, as amended; (iv) any Proceeding as to which the DGCL confers jurisdiction on the Court of Chancery of the State of
Delaware; or (v) any Proceeding asserting a claim against the Company or any current or former director, officer or stockholder governed
by the internal affairs doctrine. This provision would not apply to suits brought to enforce any liability or duty created by apply to
suits brought to enforce any liability or duty created by the Securities Act of 1933, as amended, the Exchange Act of 1934, as amended,
or any other claim for which the federal courts of the United States have exclusive jurisdiction. The Certificate of Incorporation
further provides that, unless the Company consents in writing to the selection of an alternative forum, the federal district courts of
the United States shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the
Securities Act. These provisions may have the effect of discouraging lawsuits against the Company or its directors and officers.
Limitations on Liability and Indemnification
of Directors and Officers
The Certificate of Incorporation
provides that no director of the Company shall have any personal liability to the Company or its stockholders for monetary damages for
any breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted
under the DGCL. Amendments to these provisions shall not adversely affect any right or protection of a director of the Company in
respect of any act or omission occurring prior to the time of such amendment.
The Certificate of Incorporation
further provides that the Company indemnify directors and officers to the fullest extent permitted by law. The Company is also expressly
authorized to advance certain expenses (including, without limitation, attorneys’ fees) to its directors and officers and to maintain
insurance, at its expense, to protect itself and/or any director, officer, employee or agent of the Company against any expense, liability
or loss, whether or not the Company would have the power to indemnify such person against such expense, liability or loss under the DGCL.
In addition, the Company entered
into separate indemnification agreements with its directors and officers. These agreements, among other things, requires the Company to
indemnify its directors and officers for certain expenses, including attorneys’ fees, judgments, fines and settlement amounts incurred
by a director or officer in any action or proceeding arising out of their services as one of the Company’s directors or officers
or any other company or enterprise to which the person provides services at the Company’s request.
Stockholders’ Derivative Actions
Under the DGCL, any of our
stockholders may bring an action in the Company’s name to procure a judgment in its favor, also known as a derivative action; provided
that the stockholder bringing the action is a holder of our shares at the time of the transaction to which the action relates.
Item 2. Exhibits.
The following exhibits to this Registration Statement
on Form 8-A/A are incorporated by reference from the documents specified, which have been filed with the SEC.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereto duly authorized.
| Dated: August 11, 2023 |
CLEARSIGN TECHNOLOGIES CORPORATION |
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|
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|
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By: |
/s/ Colin James Deller |
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|
Colin James Deller |
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|
Chief Executive Officer |
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