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Registration No. 333 - _________
As filed with the Securities and Exchange Commission on October 16, 2000
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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H POWER CORP.
(Exact name of registrant as specified in its charter)
DELAWARE 22-3010742
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1373 BROAD STREET
CLIFTON, NEW JERSEY 07013
(Address, including zip code, of principal executive offices)
H POWER CORP. 1989 STOCK OPTION PLAN
H POWER CORP. 2000 STOCK OPTION PLAN
INDIVIDUAL STOCK OPTION GRANTS OUTSIDE OF A PLAN
(Full title of the plan)
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DR. H. FRANK GIBBARD
CHIEF EXECUTIVE OFFICER
H POWER CORP.
1373 BROAD STREET
CLIFTON, NEW JERSEY 07013
(973) 249-5444
(Name, address and telephone number, including area code,
of agent for service)
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Copies of all communications, including all communications sent to
the agent for service, should be sent to:
MERRILL M. KRAINES, ESQ.
FULBRIGHT & JAWORSKI L.L.P.
666 FIFTH AVENUE
NEW YORK, NEW YORK 10103
(212) 318-3261
FACSIMILE: (212) 318-3400
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED(1) OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE(2) REGISTRATION FEE(2)
<S> <C> <C> <C>
============================== ======================= ======================== =========================== ====================
Common Stock, $0.001 par value 8,571,875 SHARES See Chart Below $92,549,865 $24,434
============================== ======================= ======================== =========================== ====================
</TABLE>
(1) PLUS SUCH ADDITIONAL INDETERMINABLE NUMBER OF SHARES AS MAY BE REQUIRED
PURSUANT TO THE H POWER CORP. 2000 STOCK OPTION PLAN, THE H. POWER
CORP. JUNE 6, 1989 STOCK OPTION PLAN AND GRANTS OUTSIDE OF A PLAN,
IN THE EVENT OF A STOCK DIVIDEND, STOCK SPLIT, RECAPITALIZATION OR
OTHER SIMILAR CHANGE IN THE COMMON STOCK.
(2) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE AMOUNT OF THE
REGISTRATION FEE PURSUANT TO RULE 457(h) OF THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"). THE PRICE PER SHARE AND AGGREGATE OFFERING PRICE
ARE BASED UPON (A) FOR SHARES AVAILABLE FOR FUTURE GRANT UNDER THE H
POWER CORP. 2000 STOCK OPTION PLAN, THE AVERAGE OF THE HIGH AND LOW
PRICES OF H POWER CORP.'S COMMON STOCK ON OCTOBER 11, 2000, AS REPORTED
ON THE NASDAQ NATIONAL MARKET (PURSUANT TO RULE 457(c) UNDER THE ACT)
AND (B) FOR SHARES PREVIOUSLY GRANTED UNDER (i) THE H POWER CORP. 2000
STOCK OPTION PLAN AND (ii) THE H POWER CORP. JUNE 6, 1989 STOCK OPTION
PLAN AND FOR SHARES SUBJECT TO OUTSTANDING OPTIONS GRANTED OUTSIDE OF
ANY PLAN, THE RESPECTIVE EXERCISE PRICES FOR SUCH OUTSTANDING OPTIONS
(PURSUANT TO RULE 457(h) UNDER THE ACT).
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THE FOLLOWING CHART ILLUSTRATES THE CALCULATION OF THE REGISTRATION FEE:
<TABLE>
<CAPTION>
MAXIMUM AGGREGATE
NUMBER OF SHARES OFFERING PRICE PER SHARE OFFERING PRICE
<S> <C> <C> <C>
SHARES PREVIOUSLY GRANTED UNDER 1989 91,250 $0.80 $73,000
STOCK OPTION PLAN
SHARES AVAILABLE FOR FUTURE GRANT 2,838,175 $18.15625 $51,530,615
UNDER 2000 STOCK OPTION PLAN
SHARES PREVIOUSLY GRANTED UNDER 876,825 $16.00 $14,029,200
2000 STOCK OPTION PLAN
SHARES PREVIOUSLY GRANTED UNDER 2000 35,000 $17.63 $617,050
STOCK OPTION PLAN(3)
STOCK OPTION GRANTS ISSUED OUTSIDE OF 990,625 $16.00 $15,850,000
A PLAN(4)
STOCK OPTION GRANTS ISSUED OUTSIDE OF 2,200,000 $3.00 $6,600,000
A PLAN(5)
STOCK OPTION GRANTS ISSUED OUTSIDE OF 1,540,000 $2.50 $3,850,000
A PLAN(6)
TOTAL: 8,571,875 - $92,549,865
REGISTRATION FEE: - - $24,434
================================== ================================== ================================== ==========================
(3) STOCK OPTION GRANTS ISSUED PURSUANT TO THE 2000 STOCK OPTION PLAN AT AN OFFERING PRICE OF $17.63.
(4) STOCK OPTION GRANTS ISSUED OUTSIDE OF A PLAN AT AN OFFERING PRICE OF $16.00 PER SHARE.
(5) STOCK OPTION GRANTS ISSUED OUTSIDE OF A PLAN AT AN OFFERING PRICE OF $3.00 PER SHARE.
(6) STOCK OPTION GRANTS ISSUED OUTSIDE OF A PLAN AT AN OFFERING PRICE OF $2.50 PER SHARE.
</TABLE>
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PART I
In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission"), the documents containing the
information called for in Part I of Form S-8 will be sent or given to
individuals who participate in the H. Power Corp. 2000 Stock Option Plan
adopted by H Power Corp. (the "Company" or the "Registrant"), who have been
granted stock options under the H Power Corp. June 6, 1989 Stock Option Plan
adopted by the Company or who have been granted stock options outside of a
plan, and are not being filed with or included in this Form S-8.
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Company are incorporated herein by
reference:
(i) The Company's Rule 424(b) prospectus as filed with the
Commission on August 10, 2000; and
(ii) The description of the Company's Common Stock contained
in its Registration Statement on Form 8-A, as filed with the Commission on July
28, 2000.
In addition to the foregoing, all documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended, prior to the filing of a post-effective
amendment indicating that all of the securities offered hereunder have been sold
or deregistering all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be part hereof
from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered hereby has been
passed on for the Company by Fulbright & Jaworski L.L.P., 666 Fifth Avenue, New
York, New York 10103. Merrill M. Kraines, a partner in such firm, is the
Secretary of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145(a) of the General Corporation Law of the State of
Delaware ("DGCL") provides that a Delaware corporation may indemnify any person
who was or is a party or is 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
corporation), by reason of the fact that the person is or was a director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by the person in connection with such action, suit or proceeding if the person
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acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful.
Section 145(b) of the DGCL provides that a Delaware
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the
fact that the person acted in any of the capacities set forth above, against
expenses (including attorneys' fees) actually and reasonably incurred by the
person in connection with the defense or settlement of such action or suit if
the person acted under similar standards, except that no indemnification may be
made in respect of 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 in which such action or suit was brought shall determine that despite
the adjudication of liability, such person is fairly and reasonably entitled to
be indemnified for such expenses which the court shall deem proper.
Section 145 of the DGCL further provides that to the extent a
director or officer of a corporation has been successful on the merits or
otherwise in the defense of any action, suit or proceeding referred to in
subsections (a) and (b) or in the defense of any claim, issue or matter therein,
such person shall be indemnified against expenses actually and reasonably
incurred by such person in connection therewith; that indemnification provided
for by Section 145 shall not be deemed exclusive of any other rights to which
the indemnified party may be entitled; and that the corporation may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
enterprise, against any liability asserted against such person and incurred by
such person in any such capacity or arising out of such person's status as such,
whether or not the corporation would have the power to indemnify such person
against such liabilities under such Section 145.
Section 102(b)(7) of the DGCL provides that a certificate of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director provided that such provision
shall not eliminate or limit the liability of a director: (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders; (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) under Section 174 of the DGCL; or (iv) for any
transaction from which the director derived an improper personal benefit.
Our Amended and Restated Certificate of Incorporation and
By-Laws provide that we may indemnify all persons who we are entitled to
indemnify under the DGCL to the fullest extent permitted thereunder.
Furthermore, our Amended and Restated Certificate of Incorporation provides
that, to the extent permitted under Section 102(b)(7) of the DGCL, none
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of our directors will be personally liable to H Power or its stockholders for
monetary damages for breach of fiduciary duty as a director. We have entered or
will enter into indemnification agreements with each of our directors and
executive officers, which will indemnify these persons to the fullest extent
permitted under the DGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
4.1 -- H Power Corp. 2000 Stock Option Plan
(incorporated by reference to Exhibit 10.2
to the Company's Registration Statement on
Form S-1 (No. 333-34234))
4.2 -- Form of Stock Option Agreement for stock
option grants issued pursuant to the
H Power Corp. 2000 Stock Option Plan
4.3 -- H Power Corp. June 6, 1989 Stock Option
Plan
4.4 -- Form of Stock Option Agreement for stock
option grants issued pursuant to the
H Power Corp. June 6, 1989 Stock Option
Plan
4.5 -- Form of Stock Option Agreement for stock
option grants issued outside of a plan
with Schedule of Optionees attached
4.6 -- Form of Stock Option Agreement for stock
option grants issued outside of a plan
with Schedule of Optionees attached
5.1 -- Opinion of Fulbright & Jaworski L.L.P.
23.1 -- Consent of PricewaterhouseCoopers LLP
23.2 -- Consent of Fulbright & Jaworski L.L.P.
(included in Exhibit 5.1)
24.1 -- Power of Attorney (included in signature
page)
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;
(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 the volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and
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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 percent 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;
(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.
(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 (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.
(h) 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.
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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 Clifton, State of New Jersey, on this 16th day
of October, 2000.
H POWER CORP.
By: /s/ H. Frank Gibbard
--------------------------------------
H. Frank Gibbard
Chief Executive Officer and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints H. Frank Gibbard and William L. Zang, or
either of them, as his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and any registration
statement relating to the offering hereunder pursuant to Rule 462 under the
Securities Act of 1933, as amended, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or either of them, or their or his
substitute or 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:
<TABLE>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ H. Frank Gibbard
------------------------ Director, Chief Executive Officer October 16, 2000
H. Frank Gibbard (principal executive officer)
</TABLE>
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/s/ William L. Zang
------------------------ Director, Chief Financial Officer October 16, 2000
William L. Zang (principal financial and
accounting officer)
/s/ Fong Saik Hay
------------------------ Director October 16, 2000
Fong Saik Hay
/s/ Rachel K. Lorey
------------------------ Director October 16, 2000
Rachel K. Lorey
/s/ John McSweeney
------------------------ Director October 16, 2000
John McSweeney
/s/ Ivan Roch
------------------------ Director October 16, 2000
Ivan Roch
/s/ Gary K. Willis
------------------------ Director October 16, 2000
Gary K. Willis
/s/ Howard L. Clark, Jr.
------------------------ Director October 16, 2000
Howard L. Clark, Jr.
/s/ Leonard A. Hadley
------------------------ Director October 16, 2000
Leonard A. Hadley
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INDEX TO EXHIBITS
EXHIBITS
4.2 -- Form of Stock Option Agreement for stock
option grants issued pursuant to the
H Power Corp. 2000 Stock Option Plan
4.3 -- H Power Corp. June 6, 1989 Stock Option
Plan
4.4 -- Form of Stock Option Agreement for stock
option grants issued pursuant to the
H Power Corp. June 6, 1989 Stock Option Plan
4.5 -- Form of Stock Option Agreement for stock
option grants issued outside of a plan
with Schedule of Optionees attached
4.6 -- Form of Stock Option Agreement for stock
option grants issued outside of a plan
with Schedule of Optionees attached
5.1 -- Opinion of Fulbright & Jaworski L.L.P.
23.1 -- Consent of PricewaterhouseCoopers LLP
23.2 -- Consent of Fulbright & Jaworski L.L.P.
(included in Exhibit 5.1)
24.1 -- Power of Attorney (included in signature
page)
