As filed with the Securities and Exchange Commission on March 15, 2010
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
A123 SYSTEMS, INC.
(Exact Name of Registrant as Specified in Its
Charter)
Delaware |
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04-3583876 |
(State or Other
Jurisdiction of Incorporation |
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(I.R.S. Employer
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Arsenal
on the Charles |
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02472 |
(Address of Principal Executive Offices) |
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(Zip Code) |
2001 Stock Incentive Plan
2009 Stock Incentive Plan
(Full Title of the Plan)
David P. Vieau
Chief Executive Officer
A123 Systems, Inc.
Arsenal on the Charles
321 Arsenal Street
Watertown, Massachusetts 02472
(Name and Address of Agent For Service)
(617) 778-5700
(Telephone Number, Including Area Code, of Agent For Service)
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 12b2 of the Exchange Act.
Large accelerated filer o |
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Accelerated filer o |
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Non-accelerated filer x |
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Smaller reporting company o |
(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Title of |
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Amount to be |
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Proposed |
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Proposed |
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Amount of |
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Common Stock, $0.001 par value per share |
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17,861,482 shares |
(2) |
$0.10 - $20.11(3) |
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$ |
191,769,063 |
(3) |
$ |
13,673 |
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(1) In accordance with Rule 416 under the Securities Act of 1933, as amended, this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.
(2) Consists of (i) 9,361,482 shares issuable under the 2001 Stock Incentive Plan and (ii) 8,500,000 shares issuable under the 2009 Stock Incentive Plan.
(3) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h) of the Securities Act of 1933, as amended. The price per share and aggregate offering price are calculated on the basis of (a) $5.85, the weighted average exercise price of the 9,361,482 shares subject to outstanding stock option grants under the 2001 Stock Incentive Plan, at prices ranging from $0.10 to $13.28, (b) $20.11, the exercise price of the 323,950 shares subject to outstanding stock option grants under the 2009 Stock Incentive Plan, and (c) $15.96, the average of the high and low sale prices of the registrants Common Stock on The NASDAQ Global Market on March 11, 2010, in accordance with Rule 457(c) under the Securities Act of 1933, as amended, for the 8,176,050 shares issuable under the 2009 Stock Incentive Plan which are not subject to outstanding options.
The information required by Item 1 is included in documents sent or given to participants in the plans covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the Securities Act).
The written statement required by Item 2 is included in documents sent or given to participants in the plans covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act.
The registrant is subject to the informational and reporting requirements of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the Commission). The following documents, which are on file with the Commission, are incorporated in this registration statement by reference:
All documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be part hereof from the date of the 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 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 herein modifies or supersedes such 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.
Not applicable.
Not applicable.
Section 102 of the Delaware General Corporation Law permits a corporation to eliminate the personal liability of its directors or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his or her duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. The registrants certificate of incorporation provides that no director shall be personally liable to the registrant or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability, except to the extent that the Delaware General Corporation Law prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty.
Section 145 of the Delaware General Corporation Law provides that a corporation has the power to indemnify a director, officer, employee or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against expenses (including attorneys fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he or she is or is threatened to be made a party by reason of such position, if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to 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 other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnify for such expenses which the Court of Chancery or such other court shall deem proper.
The registrants certificate of incorporation provides that it will indemnify each person who was or is a party or 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 registrant) by reason of the fact that he or she is or was, or has agreed to become, its director or officer, or is or was serving, or has agreed to serve, at its request as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (each such person being referred to as an Indemnitee), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding and any appeal therefrom, if such Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the registrants best interests, and, with respect to any criminal action or proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful.
The registrants certificate of incorporation also provides that it will indemnify any Indemnitee who was or is a party to an action or suit by or in the right of the registrant to procure a judgment in the registrants favor by reason of the fact that the Indemnitee is or was, or has agreed to become, the registrants director or officer, or is or was serving, or has agreed to serve, at the registrants request as a director, officer, partner, employee or trustee or, or in a similar capacity with, another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys fees) and, to the extent permitted by law, amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding, and any appeal therefrom, if the Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the registrants best interests, except that no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the registrant, unless a court determines that, despite such adjudication but in view of all of the circumstances, he or she is entitled to indemnification of such expenses. Notwithstanding the foregoing, to the extent that any Indemnitee has been successful, on the merits or otherwise, he or she will be indemnified by the registrant against all expenses (including attorneys fees) actually and reasonably incurred by him or her or on his or her behalf in connection therewith. If the registrant does not assume the defense, expenses must be advanced to an Indemnitee under certain circumstances.
Certain of the registrants non-employee directors may, through their relationships with their employers, be insured and/or indemnified against certain liabilities in their capacity as members of the registrants board of directors.
The registrant maintains a general liability insurance policy which covers certain liabilities of the registrants directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers.
Not applicable.
The Exhibit Index immediately preceding the exhibits is incorporated herein by reference.
provided, however, that paragraphs (i) and (ii) 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 the registration statement.
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 Town of Watertown, Commonwealth of Massachusetts, on this 15th day of March, 2010.
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A123 SYSTEMS, INC. |
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By: |
/s/ David P. Vieau |
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David P. Vieau |
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Chief Executive Officer |
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of A123 Systems, Inc., hereby severally constitute and appoint David P. Vieau, Michael Rubino and Eric J. Pyenson, and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the registration statement on Form S-8 filed herewith and any and all subsequent amendments to said registration statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable A123 Systems, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration statement and any and all amendments thereto.
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.
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Title |
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Date |
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/s/ David P. Vieau |
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Chief Executive Officer and Director (principal |
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March 15, 2010 |
David P. Vieau |
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executive officer) |
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/s/ Michael Rubino |
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Chief Financial Officer (principal financial and |
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March 15, 2010 |
Michael Rubino |
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accounting officer) |
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/s/ Gururaj Deshpande |
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Director |
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March 15, 2010 |
Gururaj Deshpande |
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/s/ Arthur L. Goldstein |
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Director |
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March 15, 2010 |
Arthur L. Goldstein |
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/s/ Gary E. Haroian |
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Director |
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March 15, 2010 |
Gary E. Haroian |
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/s/ Paul E. Jacobs |
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Director |
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March 15, 2010 |
Paul E. Jacobs |
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/s/ Mark M. Little |
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Director |
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March 15, 2010 |
Mark M. Little |
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/s/ Jeffrey P. McCarthy |
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Director |
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March 15, 2010 |
Jeffrey P. McCarthy |
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/s/ Gilbert Neal Riley, Jr. |
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Director |
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March 15, 2010 |
Gilbert Neal Riley, Jr. |
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INDEX TO EXHIBITS
Number |
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Description |
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4.1(1) |
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Restated Certificate of Incorporation of the Registrant |
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4.2(1) |
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Second Amended and Restated By-Laws of the Registrant |
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5 |
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Opinion of Wilmer Cutler Pickering Hale and Dorr LLP, counsel to the Registrant |
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23.1 |
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Consent of Wilmer Cutler Pickering Hale and Dorr LLP (included in Exhibit 5) |
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23.2 |
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Consent of Deloitte & Touche LLP |
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24 |
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Power of attorney (included on the signature pages of this registration statement) |
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99.1(1) |
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2001 Stock Incentive Plan |
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99.2(1) |
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2009 Stock Incentive Plan |
(1) Previously filed with the Securities and Exchange Commission as an Exhibit to the Registrants Registration Statement on Form S-1, as amended (File No. 333-152871) and incorporated herein by reference.