<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 8, 2001
REGISTRATION NO. ___-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
EVERGREEN SOLAR, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 04-3242254
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
EVERGREEN SOLAR, INC.
211 SECOND AVENUE
WALTHAM, MASSACHUSETTS 02541
(Address of Principal Executive Offices) (Zip Code)
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1994 STOCK OPTION PLAN
2000 STOCK OPTION AND INCENTIVE PLAN
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
--------------------
MARK A. FARBER
CHIEF EXECUTIVE OFFICER AND PRESIDENT
EVERGREEN SOLAR, INC.
211 SECOND AVENUE
WALTHAM, MASSACHUSETTS 02541
(Name and Address of Agent For Service)
(781) 890-7117
(Telephone Number, Including Area Code, of Agent For Service)
------------------------------
Copy to:
Lawrence A. Gold, Esq.
Jennifer C. Muto, Esq.
TESTA, HURWITZ & THIBEAULT, LLP
125 High Street
Boston, Massachusetts 02110
(617) 248-7000
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE(1)
------------------------------------ ---------- --------- -------------- -------------------
<S> <C> <C> <C> <C>
1994 STOCK OPTION PLAN 4,153(2) $ 0.22 $ 913.66 $ 0.23
Common Stock (par value $0.01 per share) 6,463(2) $ 0.43 $ 2,779.09 $ 0.70
20,205(2) $ 0.65 $ 13,133.25 $ 3.28
299,438(2) $ 0.87 $ 260,511.06 $ 65.13
140,412(2) $ 2.17 $ 304,694.04 $ 76.17
48,941(2) $ 4.55 $ 222,681.55 $ 55.67
63,246(2) $ 6.50 $ 411,099.00 $ 102.77
127,019(2) $ 14.00 $ 1,778,266.00 $ 444.57
2000 STOCK OPTION AND INCENTIVE PLAN 1,608,000(3) $ 6.53125 $ 10,502,250.00 $ 2625.56
Common Stock (par value $0.01 per share) 16,000(2) $ 19.00 $ 304,000.00 $ 76.00
26,000(2) $ 7.56 $ 196,560.00 $ 49.14
2000 EMPLOYEE STOCK PURCHASE PLAN 120,000(3) $ 6.53125 $ 783,750.00 $ 195.94
Common Stock (par value $0.01 per share)
TOTAL: 2,479,877 $ 14,780,637.65 $3,695.16
</TABLE>
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(1) Calculated pursuant to Section 6(b) of the Securities Act of 1933, as
amended.
(2) Such shares are issuable upon exercise of outstanding options with fixed
exercise prices. Pursuant to Rule 457(h), the aggregate offering price and
the fee have been computed upon the basis of the price at which the options
may be exercised. The offering price per share set forth for such shares is
the exercise price per share at which such options are exercisable.
(3) None of such shares are subject to outstanding options. The exercise price
of such options shall be determined at the time of grant. Accordingly,
pursuant to Rule 457(c) and Rule 457(h)(1), the proposed maximum offering
price of $6.53125 per share, which is the average of the high and low
prices of the Common Stock of the Registrant reported on the NASDAQ
National Market on January 3, 2001, is set forth solely for purposes of
calculating the filing fee.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The documents containing the information specified in this Item 1 will be
sent or given to employees, directors and others as specified by Rule 428(b)(1).
In accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission") and the instructions to Form S-8, such documents
are not being filed with the Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The documents containing the information specified in this Item 2 will be
sent or given to employees, directors or others as specified by Rule 428(b)(1).
In accordance with the rules and regulations of the Commission and the
instructions to Form S-8, such documents are not being filed with the Commission
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Evergreen Solar, Inc. (the "Company" or
the "Registrant") with the Commission pursuant to the Securities Act of 1933, as
amended (the "Securities Act") and the Securities Exchange Act of 1934, as
amended (the "Exchange Act") are incorporated by reference in this Registration
Statement:
(a) The Registrant's Prospectus dated November 1, 2000, filed with the
Commission pursuant to Rule 424(b)(1) under the Securities Act on
November 2, 2000.
(b) The section entitled "Description of Registrant's Securities to be
Registered" contained in the Registrant's Registration Statement on
Form 8-A, filed with the Commission pursuant to Section 12(g) of the
Exchange Act on October 4, 2000, including any amendment or report
filed for the purpose of updating such description.
(c) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 2000 filed on December 15, 2000 pursuant to the
Exchange Act.
All documents subsequently filed with the Commission 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 herein 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 a part hereof from the date of filing of such documents.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law and the Company's Third Amended and
Restated Certificate of Incorporation provide for indemnification of the
Company's directors and officers for liabilities and expenses that they may
incur in such capacities.
The Company's Third Amended and Restated Certificate of Incorporation
provides that our directors and officers shall be indemnified to the fullest
extent permitted by Delaware law, as it now exists or may in the future be
amended, against all expenses and liabilities reasonably incurred in connection
with their service for or on behalf of the Company.
In addition, our Third Amended and Restated Certificate of Incorporation
provides that our directors will not be personally liable to us or our
stockholders for monetary damages for breaches of their fiduciary duty as
directors, unless they violated their duty of loyalty to us or our stockholders,
acted in bad faith, knowingly or intentionally violated the law, authorized
illegal dividends or redemptions or derived an improper person benefit from
their action as directors. This provision does not affect the directors'
responsibilities under Delaware law or any other laws, such as the federal
securities laws.
The Company has also entered into Indemnification Agreements with its
Directors and Officers, under which the Company shall 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 by reason of the fact that such person is or was a director,
officer, employee or agent of the Company, or any subsidiary of the Company, or
is or was serving at the request of the Company as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against all liability, losses, expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement by such person in connection
with such action, suit or proceeding. The Company shall only provide
indemnification if such person acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the Company, and, with
respect to any criminal action or proceedings, if such person had no reasonable
cause to believe his conduct was unlawful.
The underwriting agreement, dated November 1, 2000, by and between the
Registrant and the underwriters listed therein provides that the underwriters
are obligated, under certain circumstances, to indemnify directors, officers and
controlling persons of the Registrant against certain liabilities, including
liabilities under the Securities Act. Reference is made to the form of
underwriting agreement filed as Exhibit 1.1 to the Registrant's Registration
Statement of Form S-1 (File No. 333-43140).
In addition, the Company maintains directors and officers liability
insurance for the benefit of its directors and certain of its officers.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description
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4.1 Specimen Certificate for shares of the Registrant's Common Stock
(filed as Exhibit 4.1 to the Registrant's Registration Statement
on Form S-1 (File No. 333-43140) and incorporated herein by
reference)
4.2 Third Amended and Restated Certificate of Incorporation of the
Registrant currently in effect (filed as Exhibit 3.2 to the
Registrant's Registration Statement on Form S-1 (File No.
333-43140) and incorporated herein by reference)
4.3 Second Amended and Restated By-Laws of the Registrant currently
in effect (filed as Exhibit 3.4 to the Registrant's Registration
Statement on Form S-1 (File No. 333-43140) and incorporated
herein by reference)
4.4 1994 Stock Option Plan (filed as Exhibit 10.1 to the Registrant's
Registration Statement on Form S-1 (File No. 333-43140) and
incorporated herein by reference)
4.5 2000 Stock Option and Incentive Plan currently in effect (filed
as Exhibit 10.2 to the Registrant's Registration Statement on
Form S-1 (File No. 333-43140) and incorporated herein by
reference)
4.6 2000 Employee Stock Purchase Plan currently in effect (filed as
Exhibit 10.3 to the Registrant's Registration Statement on Form
S-1 (File No. 333-43140) and incorporated herein by reference)
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP (filed herewith)
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit
5.1)
23.2 Consent of PricewaterhouseCoopers LLP (filed herewith)
24.1 Power of Attorney (included as part of the signature page of this
Registration Statement)
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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 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 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement; and
(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.
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(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.
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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 Waltham, Commonwealth of Massachusetts, on this 8th
day of January, 2001.
EVERGREEN SOLAR, INC.
By: /s/ Mark A. Farber
-----------------------------------------
Mark A. Farber
President and Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
The undersigned officers and directors of Evergreen Solar, Inc., hereby
constitute and appoint Mark A. Farber and Richard G. Chleboski, and each of them
singly, our true and lawful attorneys-in-fact, with full power to them and each
of them singly, to sign for us in our names in the capacities indicated below,
any amendments to this Registration Statement on Form S-8 (including
post-effective amendments), and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, and generally to do all things in our names and on our behalf in our
capacities as officers and directors to enable Evergreen Solar, Inc., to comply
with the provisions of the Securities Act of 1933, as amended, hereby ratifying
and confirming our signatures as they may be signed by our said attorneys, or
any of them, to said Registration Statement 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 indicated below:
<TABLE>
<CAPTION>
SIGNATURE TITLE(S) DATE
--------- -------- ----
<S> <C> <C>
/s/ Mark A. Farber Chief Executive Officer, President and January 8, 2001
------------------------------------ Director (Principal Executive Officer)
Mark A. Farber
/s/ Richard G. Chleboski Chief Financial Officer, Treasurer, January 8, 2001
------------------------------------ Secretary and Director (Principal
Richard G. Chleboski Financial Officer)
/s/ Gordon B. Baty Director January 8, 2001
------------------------------------
Dr. Gordon B. Baty
/s/ William C. Osborn Director January 8, 2001
------------------------------------
William C. Osborn
/s/ Robert W. Shaw Chairman of the Board January 8, 2001
------------------------------------
Dr. Robert W. Shaw, Jr.
/s/ William P. Sommers Director January 8, 2001
------------------------------------
Dr. William P. Sommers
/s/ Brown F. Williams Director January 8, 2001
------------------------------------
Dr. Brown F. Williams
Director January , 2001
------------------------------------
Mason Willrich
</TABLE>
<PAGE> 9
INDEX TO EXHIBITS
Exhibit No. Description
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4.1 Specimen Certificate for shares of the Registrant's Common Stock
(filed as Exhibit 4.1 to the Registrant's Registration Statement
on Form S-1 (File No. 333-43140) and incorporated herein by
reference)
4.2 Third Amended and Restated Certificate of Incorporation of the
Registrant currently in effect (filed as Exhibit 3.2 to the
Registrant's Registration Statement on Form S-1 (File No.
333-43140) and incorporated herein by reference)
4.3 Second Amended and Restated By-Laws of the Registrant currently
in effect (filed as Exhibit 3.4 to the Registrant's Registration
Statement on Form S-1 (File No. 333-43140) and incorporated
herein by reference)
4.4 1994 Stock Option Plan (filed as Exhibit 10.1 to the Registrant's
Registration Statement on Form S-1 (File No. 333-43140) and
incorporated herein by reference)
4.5 2000 Stock Option and Incentive Plan currently in effect (filed
as Exhibit 10.2 to the Registrant's Registration Statement on
Form S-1 (File No. 333-43140) and incorporated herein by
reference)
4.6 2000 Employee Stock Purchase Plan currently in effect (filed as
Exhibit 10.3 to the Registrant's Registration Statement on Form
S-1 (File No. 333-43140) and incorporated herein by reference)
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP (filed herewith)
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit
5.1)
23.2 Consent of PricewaterhouseCoopers LLP (filed herewith)
24.1 Power of Attorney (included as part of the signature page of this
Registration Statement)
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