Registration Statement No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BEACON POWER CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 04-3372365
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6D Gill Street
Woburn, MA 01801
781-938-9400
------------
(Address, including zip code and telephone number,
including area code, of registrant's principal executive offices)
Second Amended and Restated 1998 Stock Incentive Plan
of Beacon Power Corporation
Beacon Power Corporation Employee Stock Purchase Plan
(Full title of the plans)
William E. Stanton
President and Chief Executive Officer
Beacon Power Corporation
6D Gill Street
Woburn, MA 01801
781-938-9400
(Name, address, including zip code and telephone number,
including area code, of agent for service)
with a copy to:
Laura N. Wilkinson, Esq.
Edwards & Angell, LLP
2800 BankBoston Plaza
Providence, RI 02903
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================== =================== ===================== ======================= ==============
Title of Each Class Amount to be Proposed maximum Proposed maximum Amount of
of Securities to be Registered registered offering price per aggregate offering registration
unit (1) price (1) fee
-------------------------------------- ------------------- --------------------- ----------------------- --------------
<S> <C>
Common Stock,$.01 par value 9,781,867 $6.00 $58,691,202 $15,495
====================================== =================== ===================== ======================= ==============
</TABLE>
(1) These figures are estimates made solely for the purpose of calculating the
registration fee pursuant to Rule 457 under the Securities Act of 1933, as
amended. The registration fee has been calculated in accordance Rule
457(h) based upon the average of the high and low prices for shares of the
Registrant on the NASDAQ National Market on November 16, 2000.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
(Not required to be filed as part of this Registration Statement)
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which Beacon Power Corporation (the "Registrant")
has filed with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934 (the "Exchange Act"), are
incorporated in this Registration Statement by reference:
(a) The Registrant's prospectus filed under Rule 424(b) under the
Securities Act of 1933.
(b) Not applicable.
(c) The description of the Registrant's Common Stock contained in the
Registrant's registration statement on Form 8-A filed under Section 12 of
the Exchange Act on October 11, 2000, including any amendments or reports
filed for the purpose of updating such description.
All documents filed with the Commission by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date
of this Registration Statement and prior to the filing of a post-effective
amendment hereto which indicates that all securities offered hereby have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated herein by reference and made a part hereof from the date of
filing of such documents. Any statement contained in this Registration Statement
or in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for 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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the securities offered under this Registration Statement
will be passed upon by Edwards & Angell, LLP, 101 Federal Street, Boston,
Massachusetts 02110-1800. Certain partners and employees of Edwards & Angell,
LLP own shares of common stock of the Registrant with a fair market value in
excess of $50,000.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides, in effect,
that any person made a party to any action by reason of the fact that he is or
was serving as a director, officer, employee or other agent of a corporation, or
in such a capacity with another entity at the request of the corporation, may
and, in certain cases, must be indemnified by the Registrant against, in the
case of a non-derivative action, judgments, fines, amounts paid in settlement
and reasonable expenses (including attorneys' fees) incurred by him as a result
of such action, and in the case of a derivative action, against reasonable
expenses (including attorneys' fees), if in either type of action he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
Registrant's best interests. This indemnification does not apply, in a
derivative action, to matters as to which it is adjudged that the director,
officer, employee or other agent is liable to the Registrant, unless upon court
order it is determined that, despite such adjudication of liability but in view
of all the circumstances of the case, he is fairly and reasonably entitled to
indemnity for expenses, and, in a non-derivative action, to any criminal
proceeding in which such person had reasonable cause to believe his conduct was
unlawful.
The Registrant's certificate of incorporation provides that none of its
directors or officers or other parties whom it has requested to serve as
directors, officers, trustees or in similar capacities with other entities shall
be liable to the Registrant or its stockholders for monetary damages deriving
from an action to which such persons were party on account of them serving the
Registrant or at its request to the fullest extent not prohibited by the
Delaware General Corporation Law.
The Registrant has entered into indemnification agreements with its
directors and officers. Subject to certain limited exceptions, under these
agreements, the Registrant will be obligated, to the fullest extent not
prohibited by the Delaware General Corporation Law, to indemnify such directors
and officers against all expenses, judgments, fines and penalties incurred in
connection with the defense or settlement of any actions brought against them by
reason of the fact that they were directors or officers of the Registrant. The
Registrant also maintains liability insurance for its directors and officers in
order to limit its exposure to liability for indemnification of its directors
and officers.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description of Exhibit
4.1 Second Amended and Restated 1998 Stock Incentive Plan of Beacon Power
Corporation (incorporated by reference to Registrant's Registration
Statement on Form S-1 dated August 9, 2000.)
4.2 Beacon Power Corporation Employee Stock Purchase Plan
5 Opinion of Edwards & Angell, LLP, counsel to Registrant
23.1 Consent of Deloitte & Touche LLP (independent accountants)
23.2 Consent of Edwards & Angell (included in Exhibit 5)
24 Power of Attorney (included on signature pages to this Registration
Statement)
Item 9. Undertakings.
(a) The 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, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (i) and (ii) shall not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement;
(2) For the purpose of determining any liability under the Securities
Act, 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 Registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act 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 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the Registrant's bylaws, 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 Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Beacon Power
Corporation has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Woburn,
Massachusetts, on this 16th day of November, 2000.
BEACON POWER CORPORATION
By: /s/ William E. Stanton
---------------------------------------
Name: William E. Stanton
Title: President and Chief Executive
Officer
Each person whose signature appears below hereby constitutes and appoints
each of William E. Stanton and James M. Spiezio his true and lawful
attorney-in-fact, with full power and authority to execute in the name, place
and stead of each such person in any and all capacities and to file, an
amendment or amendments to this Registration Statement (and all exhibits
thereto) and any documents relating thereto, which amendments may make such
changes in the Registration Statement as said officer so acting deems advisable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on this 16th day of November, 2000.
Signature Title
President and Chief Executive Officer,
/s/ William E. Stanton and Director
---------------------------------
William E. Stanton
/s/ James M. Spiezio Vice President of Finance and Chief
--------------------------------- Financial Officer
James M. Spiezio
/s/ Kenneth M. Socha
--------------------------------- Director
Kenneth M. Socha
/s/ Philip J. Deutch
--------------------------------- Director
Philip J. Deutch
/s/ David B. Eisenhaure
--------------------------------- Director
David B. Eisenhaure
/s/ Eric R. Stoltz
--------------------------------- Director
Eric R. Stoltz
/s/ Hans Kobler
--------------------------------- Director
Hans Kobler
/s/ Alan P. Goldberg
--------------------------------- Director
Alan P. Goldberg
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibit
4.1 Second Amended and Restated 1998 Stock Incentive Plan of
Beacon Power Corporation (incorporated by reference to
Registrant's Registration Statement on Form S-1 dated August
9, 2000.)
4.2 Beacon Power Corporation Employee Stock Purchase Plan
5 Opinion of Edwards & Angell, LLP, counsel to Registrant
23.1 Consent of Deloitte & Touche LLP (independent accountants)
23.3 Consent of Edwards & Angell (included in Exhibit 5)
24 Power of Attorney (included on signature pages to this
Registration Statement)
