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As filed with the Securities and Exchange Commission on September 29, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MILLENNIUM CELL INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation or Organization)
22-3726792
(I.R.S. Employer Identification No.)
1 INDUSTRIAL WAY WEST, EATONTOWN, NEW JERSEY 07724
(Address of Principal Executive Offices) (Zip Code)
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MILLENNIUM CELL INC.
AMENDED AND RESTATED 2000 STOCK OPTION PLAN
(Full Title of the Plan)
--------------------------------------------
STEPHEN S. TANG
CHIEF EXECUTIVE OFFICER
MILLENNIUM CELL INC.
1 INDUSTRIAL WAY WEST
EATONTOWN, NEW JERSEY 07724
(Name and Address of Agent for Service)
(732) 542-4000
(Telephone Number, Including Area Code, of Agent For Service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common stock, par value $.001 per 5,500,000 $20.50 (1) $112,750,000 $29,766
share...............................
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(1) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the
high and low selling price per share of Registrant's Common Stock on
September 25, 2000, as reported on the NASDAQ National Market
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to Rule 428(b)(1) under the Securities Act of 1933, as
amended, the documents containing the information specified in Part I of Form
S-8 will be sent or given to each participant in the Millennium Cell Inc.
Amended and Restated 2000 Stock Option Plan. This document and the documents
incorporated by reference in this registration statement pursuant to Item 3 of
Part II hereof, taken together, constitute the Section 10(a) Prospectus.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Millennium Cell Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's final prospectus filed pursuant to Rule
424(b)(1) with the Commission on August 11, 2000.
(b) The Registrant's Quarterly Report on Form 10-Q for the
period ended June 30, 2000, filed with the Commission on
August 14, 2000.
(c) The Registrant's Registration Statement on Form 8-A filed
with the Commission on July 19, 2000, including any
amendments or reports filed for the purpose of updating
such description, in which there are described the terms,
rights and provisions applicable to the Registrant's Common
Stock.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Act"), after the date of this Registration Statement and prior to the filing of
a post-effective amendment which indicates that all shares of Common Stock
offered hereby have been sold or which de-registers all shares of Common Stock
then remaining unsold, shall be deemed to be incorporated by reference into 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 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
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law permits
indemnification of the Registrant's officers and directors under certain
conditions and subject to certain limitations. In accordance with Section 145 of
the Delaware General Corporation Law, Article 11 of the Registrant's certificate
of incorporation provides that no director of the Registrant shall be personally
liable to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (1) for any breach of the
director's duty of loyalty to the Registrant or its stockholders, (2) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (3) in respect of unlawful dividend payments or stock
redemptions or repurchases or (4) for any transaction from which the director
derived an improper personal benefit.
Article V of the Registrant's by-laws provides for
indemnification by the Registrant of its officers and certain non-officer
employees under certain circumstances against expenses, including attorneys
fees, judgments,
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fines and amounts paid in settlement, reasonably incurred in connection with the
defense or settlement of any threatened, pending or completed legal proceeding
in which any such person is involved by reason of the fact that such person is
or was an officer or employee of the Registrant 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 Registrant and, with respect to criminal actions or
proceedings, if such person had no reasonable cause to believe his or her
conduct was unlawful.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
4.1 Certificate of Incorporation (incorporated by reference to
Exhibit 3.1 to the Company's Registration Statement on Form S-1,
Registration No. 333-37896, filed with the Securities and
Exchange Commission on May 25, 2000).
4.2 Certificate of Amendment to Certificate of Incorporation
(incorporated by reference to Exhibit 3.3 in Amendment No. 1 to
the Company's Registration Statement on Form S-1, Registration
No. 333-37896, filed with the Securities and Exchange Commission
on July 14, 2000).
4.3 Bylaws (incorporated by referenced to Exhibit 3.2 to the
Company's Registration Statement on Form S-1, Registration No.
333-37896, filed with the Securities and Exchange Commission on
May 25, 2000).
4.4 Millennium Cell, Inc., Amended and Restated 2000 Stock Option
Plan (incorporated by reference to Exhibit 10.7 in Amendment
No. 3 to the Company's Registration Statement on Form S-1,
Registration No. 333-37896, filed with the Securities and
Exchange Commission on July 27, 2000).
5.1 Opinion of Baker & McKenzie.
23.1 Consent of Baker & McKenzie -- contained in the opinion appearing
as Exhibit 5.1.
23.2 Consent of Ernst & Young LLP.
ITEM 9. UNDERTAKINGS
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;
(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;
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provided however, that clauses (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those clauses is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference 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.
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 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.
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 such Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Ac 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 Eatontown, state of New Jersey, on this 28th day of
September, 2000.
MILLENNIUM CELL INC.
By: /s/ Stephen S. Tang
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Name: Stephen S. Tang
Title: Chief Executive Officer and President
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>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Stephen S. Tang Chief Executive Officer, President and September 28, 2000
--------------------------------------- Director (Principal Executive, Accounting
Stephen S. Tang and Financial Officer)
/s/ Steven C. Amendola Chief Technical Officer, Executive Vice September 28, 2000
---------------------------------------- President and Director
Steven C. Amendola
/s/ G. Chris Andersen
----------------------------------------- Director September 28, 2000
G. Chris Andersen
/s/ Kenneth R. Baker
----------------------------------------- Director September 28, 2000
Kenneth R. Baker
/s/ William H. Fike
----------------------------------------- Director September 28, 2000
William H. Fike
/s/ Alexander MacLachlan
---------------------------------------- Director September 28, 2000
Alexander MacLachlan
/s/ Zoltan Merszei
----------------------------------------
Zoltan Merszei Director September 28, 2000
/s/ H. David Ramm
- ----------------------------------------
H. David Ramm Director September 28, 2000
/s/ James L. Rawlings
------------------------------------------
James L. Rawlings Director September 28, 2000
</TABLE>
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
4.3 Certificate of Incorporation (incorporated by reference to
Exhibit 3.1 to the Company's Registration Statement on Form S-1,
Registration No. 333-37896, filed with the Securities and
Exchange Commission on May 25, 2000).
4.4 Certificate of Amendment to Certificate of Incorporation
(incorporated by reference to Exhibit 3.3 in Amendment No. 1 to
the Company's Registration Statement on Form S-1, Registration
No.333-37896, filed with the Securities and Exchange Commission
on July 14, 2000).
4.3 Bylaws (incorporated by referenced to Exhibit 3.2 to the
Company's Registration Statement on Form S-1, Registration No.
333-37896, filed with the Securities and Exchange Commission on
May 25, 2000).
4.4 Millennium Cell, Inc., Amended and Restated 2000 Stock Option
Plan (incorporated by reference to Exhibit 10.7 in Amendment
No. 3 to the Company's Registration Statement on Form S-1,
Registration No. 333-37896, filed with the Securities and
Exchange Commission on July 27, 2000).
5.1 Opinion of Baker & McKenzie.
23.1 Consent of Baker & McKenzie -- contained in the opinion appearing
as Exhibit 5.1.
23.2 Consent of Ernst & Young LLP.
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