As Filed With the Securities and Exchange Commission on June 27, 2014
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
NORTHERN POWER SYSTEMS CORP.
(Exact name of registrant as specified in its charter)
British Columbia, Canada | 98-1181717 | |
(state or jurisdiction of incorporation or organization) | IRS employer identification No |
.
29 Pitman Road
Barre, Vermont 05641
(Address of Principal Executive Office)
Northern Power Systems Corp.
2014 Stock Option and Incentive Plan
(Full title of the Plan)
Troy C. Patton
Northern Power Systems Corp.
President and Chief Executive Officer
29 Pitman Road, Barre, Vermont 05641
(802) 461-2955
(name and address of agent for service)
With copies to:
Elliot J. Mark
Vice President and General Counsel
Northern Power Systems Corp.
29 Pitman Road, Barre Vermont 05641
(802) 461-2955
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ¨ | Accelerated filer | ¨ | |||
Non-accelerated filer | ¨ | Smaller reporting company | x |
CALCULATION OF REGISTRATION FEE
| ||||||||
Title of Securities to Be Registered | Amount to Be Registered(1) | Proposed Maximum per Share | Proposed Maximum Offering Price | Amount of Registration Fee | ||||
Common Stock, no par value | 1,664,752 | 1.59(2) | $2,646,955.68(2) | $340.93 | ||||
Common Stock, no par value | 165,213 | 3.63(2) | $599,723.19(2) | $77.24 | ||||
Common Stock, no par value | 100,250 | 3.91(2) | $391,977.50(2) | $50.49 | ||||
Common Stock, no par value | 140,000 | 4.00(2) | $560,000.00(2) | $72.13 | ||||
Common Stock, no par value | 1,268 | 8.24(2) | $10,448.32(2) | $1.35 | ||||
Common Stock, no par value | 2,335 | 8.80(2) | $20,548.00(2) | $2.65 | ||||
Common Stock, no par value | 27 | 81.37(2) | $2,196.99(2) | $0.28 | ||||
Common Stock, no par value | 27 | 97.67(2) | $2,637.09(2) | $0.34 | ||||
Common Stock, no par value | 1,926,128 | 4.10(3) | $7,897,124.80(3) | $1,017.15 | ||||
Total | 4,000,000 | $12,131,611.57 | $1,562.56 | |||||
| ||||||||
|
(1) | Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this registration statement also covers any additional shares of common stock that may be offered or issued under the Plan by reason of any stock split, stock dividend, recapitalization or similar transactions effected without the receipt of consideration which results in an increase in the number of outstanding shares of common stock. |
(2) | Such shares are issuable upon exercise of outstanding options with fixed exercise prices. Pursuant to Rule 457(h) of the Securities Act, the aggregate offering price and the fee have been computed upon the basis of the price at which the options may be exercised. |
(3) | Pursuant to Rule 457(c) of the Securities Act, an assumed price of $4.10, the average of the high and low prices of the common shares reported on the Toronto Stock Exchange on June 25, 2014 for common shares reserved for future option issuances under the Plan. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
*Northern Power Systems Corp. (the “Registrant”) will send or give to all participants in the Northern Power Systems Corp. 2014 Stock Option and Incentive Plan (the “Plan”) the document(s) containing information required by Part I of Form S-8, as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the “Commission”) under the Securities Act. The Registrant has not filed these documents with the Commission as part of this Registration Statement, but such documents are incorporated by reference, and, along with the additional documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof, shall constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Except to the extent that information is deemed furnished and not filed pursuant to securities laws and regulations, the following documents have been filed by the Registrant with the Commission and are incorporated by reference into this Registration Statement and will be deemed a part hereof:
(a) | The Registrant’s Registration Statement on Form 10 (File No. 001-36317) filed by Wind Power Holdings, Inc., the predecessor to the Registrant, on February 12, 2014, as amended by Amendment No. 1 on April 8, 2014, Amendment No. 2 on April 14, 2014, and Amendment No. 3 on May 12, 2014. |
(b) | The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2014, filed with the Commission on May 29, 2014. |
(c) | All other reports filed by the Registrant under Section 13(a) or 15(d) of the Exchange Act since April 14, 2014. |
(d) | The description of the Registrant’s common shares contained under Item 3.03 of the Registrant’s Current Report filed onForm 8-K (File No. 000-55184) dated April 23, 2014. |
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 that indicate that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposed 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 herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute part of this Registration Statement.
1
Item 4. Description of Securities
Not Applicable
Item 5. Interests of Named Experts and Counsel
Not Applicable
Item 6. Indemnification of Directors and Officers
A. Business Corporations Act
The Business Corporations Act (British Columbia) (“BCBCA”) provides that a company may:
• | indemnify an eligible party against all judgments, penalties or fines awarded or imposed in, or amounts paid in settlement of, an eligible proceeding, to which the eligible party is or may be liable; and |
• | after the final disposition of an eligible proceeding, pay the “expenses” (which includes costs, charges and expenses (including legal fees) but excludes judgments, penalties, fines or amounts paid in settlement of a proceeding) actually and reasonably incurred by an eligible party in respect of that proceeding. |
However, after the final disposition of an eligible proceeding, a company must pay expenses actually and reasonably incurred by an eligible party in respect of that proceeding if the eligible party (i) has not been reimbursed for those expenses, and (ii) is wholly successful, on the merits or otherwise, or is substantially successful on the merits, in the outcome of the proceeding. The BCBCA also provides that a company may pay the expenses as they are incurred in advance of the final disposition of an eligible proceeding if the company first receives from the eligible party a written undertaking that, if it is ultimately determined that the payment of expenses is prohibited under the BCBCA, the eligible party will repay the amounts advanced.
For the purpose of the BCBCA, an “eligible party,” in relation to a company, means an individual who:
• | is or was a director or officer of the company; |
• | is or was a director or officer of another corporation |
• | at a time when the corporation is or was an affiliate of the company, or |
• | at the request of the company; or |
• | at the request of the company, is or was, or holds or held a position equivalent to that of, a director or officer of a partnership, trust, joint venture or other unincorporated entity; |
and includes, with some exceptions, the heirs and personal or other legal representatives of that individual.
An “eligible proceeding” under the BCBCA is a proceeding in which an eligible party or any of the heirs and personal or other legal representatives of the eligible party, by reason of the eligible party being or having been a director or officer of, or holding or having held a position equivalent to that of a director or officer of, the company or an associated corporation (i) is or may be joined as a party, or (ii) is or may be
2
liable for or in respect of a judgment, penalty or fine in, or expenses related to, the proceeding. A “proceeding” includes any legal proceeding or investigative action, whether current, threatened, pending or completed.
Notwithstanding the foregoing, the BCBCA prohibits indemnifying an eligible party or paying the expenses of an eligible party if any of the following conditions apply:
• | if the indemnity or payment is made under an earlier agreement to indemnify or pay expenses and, at the time that such agreement was made, the company was prohibited from giving the indemnity or paying the expenses by its memorandum or articles; |
• | if the indemnity or payment is made otherwise than under an earlier agreement to indemnify or pay expenses and, at the time that the indemnity or payment is made, the company is prohibited from giving the indemnity or paying the expenses by its memorandum or articles; |
• | if, in relation to the subject matter of the eligible proceeding, the eligible party did not act honestly and in good faith with a view to the best interests of the company or the associated corporation, or as the case may be; or |
• | in the case of an eligible proceeding other than a civil proceeding, if the eligible party did not have reasonable grounds for believing that the eligible party’s conduct in respect of which the proceeding was brought was lawful. |
Additionally, if an eligible proceeding is brought against an eligible party by or on behalf of the company or by or on behalf of an associated corporation, the company must not (i) indemnify the eligible party in respect of the proceeding; or (ii) pay the expenses of the eligible party in respect of the proceeding.
Whether or not payment of expenses or indemnification has been sought, authorized or declined under the BCBCA, on the application of a company or an eligible party, the Supreme Court of British Columbia may do one or more of the following:
• | order a company to indemnify an eligible party against any liability incurred by the eligible party in respect of an eligible proceeding; |
• | order a company to pay some or all of the expenses incurred by an eligible party in respect of an eligible proceeding; |
• | order the enforcement of, or any payment under, an agreement of indemnification entered into by a company; |
• | order a company to pay some or all of the expenses actually and reasonably incurred by any person in obtaining an order under this section; or |
• | make any other order the court considers appropriate. |
The BCBCA provides that a company may purchase and maintain insurance for the benefit of an eligible party or the heirs and personal or other legal representatives of the eligible party against any liability that may be incurred by reason of the eligible party being or having been a director or officer of, or holding or having held a position equivalent to that of a director or officer of, the company or an associated corporation.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act of 1933, as amended, and is therefore unenforceable.
3
B. Articles of the Registrant
The Registrant’s articles provide that, subject to the BCBCA, the Registrant must indemnify a director, former director or alternate director and his or her heirs and legal personal representatives against all eligible penalties to which such person is or may be liable. Pursuant to the Registrant’s articles, each director is deemed to have contracted with the Registrant on the aforementioned terms.
The Registrant’s articles further provide that the Registrant may indemnify any person, subject to any restrictions in the BCBCA, and that the failure of a director, alternate director or officer of the Registrant to comply with the BCBCA or the Registrant’s articles does not invalidate any indemnity to which he or she is entitled under the Registrant’s articles.
The Registrant is authorized by its articles to purchase and maintain insurance for the benefit of any eligible person, and maintains directors’ and officers’ liability insurance coverage to insure its directors and officers against liability for certain actions or omissions occurring during their capacity as a director or officer.
C. The Plan
Under the terms of the Plan, neither the Board nor the Administrator, nor any member of either or any delegate thereof, shall be liable for any act, omission, interpretation, construction or determination made in good faith in connection with the Plan, and the members of the Board and the Administrator (and any delegate thereof) shall be entitled in all cases to indemnification and reimbursement by the Registrant in respect of any claim, loss, damage or expense (including, without limitation, reasonable attorneys’ fees) arising or resulting therefrom to the fullest extent permitted by law and/or under the Registrant’s articles or any directors’ and officers’ liability insurance coverage which may be in effect from time to time and/or any indemnification agreement between such individual and the Registrant.
Item 7. Exemption from Registration Claimed
Not Applicable
Item 8. Exhibits
See the Exhibit Index on the page immediately preceding the exhibits for a list of exhibits filed as part of this registration statement, which Exhibit Index is incorporated herein by reference.
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 of 1933; |
4
(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 a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; |
(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) 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 this registration statement.
(2) | that, for the purpose of determining any liability under the Securities Act of 1933, 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; and |
(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 of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended, (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, as amended) 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 of 1933 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. |
5
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 Barre, State of Vermont, on June 27, 2014.
Northern Power Systems Corp. (Issuer and Employer) | ||
By: | /s/ Elliot J. Mark | |
Elliot J. Mark Vice President & General Counsel |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Troy C. Patten, Ciel R. Caldwell, Elliot J. Mark, and Kelly K. Mack, and each of them singly, as the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution for such person and in such person’s name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments), exhibits thereto, and other documents in connection therewith to this Registration Statement and any related registration statements necessary to register additional securities and to file the same with exhibits thereto and other documents in connection therewith with the Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact and agent, or their substitutes may lawfully 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
Signature | Title | Date | ||
/s/ William Leimkuhler | ||||
William Leimkuhler | Chairman of the Board | June 27, 2014 | ||
/s/ John Simon | ||||
John Simon | Director | June 27, 2014 | ||
/s/ Marcus Baker | ||||
Marcus Baker | Director | June 27, 2014 | ||
/s/ Alexander Ellis III | ||||
Alexander Ellis III | Director | June 27, 2014 | ||
/s/ Richard Hokin | ||||
Richard Hokin | Director | June 27, 2014 |
6
/s/ Robert Lentz | ||||
Robert Lentz | Director | June 27, 2014 | ||
/s/ David Cornhill | ||||
David Cornhill | Director | June 27, 2014 | ||
/s/ Troy C. Patton | ||||
Troy C. Patton | Director President and Chief Executive Officer (principal executive officer) | June 27, 2014 | ||
/s/ Ciel R. Caldwell | ||||
Ciel R. Caldwell | Chief Financial Officer (principal financial and accounting officer) | June 27, 2014 |
7
Exhibit Index
Exhibit | Exhibit Description | |
4.1 | Certificate of Incorporation of Northern Power Systems Corp., as amended, dated April 14, 2014 (filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K (File No. 000-55184) dated April 23, 2014 and incorporated herein by reference) | |
4.2 | Form of Common Share Certificate of Registrant (filed as Exhibit 4.1 to Amendment No. 3 to the Registrant’s Registration Statement on Form 10 (File No. 001-36317) , filed by Wind Power Holdings, Inc., the predecessor to the Registrant, on May 12, 2014 and incorporated herein by reference) | |
4.3 | Northern Power Systems Corp. 2014 Stock Option and Incentive Plan (filed as Exhibit 10.2 to Registrant’s Current Report on Form 8-K (File No. 000-55184) dated April 23, 2014 and incorporated herein by reference) | |
4.4 | Northern Power Systems Corp. 2014 Stock Option and Incentive Plan Form of Non-Qualified Stock Option Grant and Agreement (filed as Exhibit 10.3 to Registrant’s Current Report on Form 8-K (File No. 000-55184) dated April 23, 2014 and incorporated herein by reference) | |
5.1* | Opinion of Elliot J. Mark, Esq. | |
23.1* | Consent of Elliot J. Mark, Esq. (included in Exhibit 5.1) | |
23.2* | Consent of CohnReznick LLP | |
24.1* | Power of Attorney (included as part of the signature page of this Registration Statement) |
*Filed herewith