As filed with the Securities and Exchange Commission on September 12, 2003
Registration No. 333-
U.S. 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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BALLARD POWER SYSTEMS INC.
(Exact name of registrant as specified in its charter)
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CANADA NOT APPLICABLE
(State or other jurisdiction (I.R.S. Employer Identification No.)
incorporation or organization)
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9000 Glenlyon Parkway
Burnaby, British Columbia
Canada V5J 5J9
(Address of Principal Executive Offices)
BALLARD POWER SYSTEMS INC. DEFERRED SHARE UNIT PLAN FOR DIRECTORS
OF BALLARD POWER SYSTEMS INC.
(Full title of the plan)
Corporation Trust Company
1633 Broadway
New York, New York 10019
(Name and address of agent for service)
(212) 894-8940
(Telephone number, including area code, of agent for service)
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Copies to:
Noordin Nanji, Esq. John T. Gaffney, Esq.
Ballard Power Systems Inc. Cravath, Swaine & Moore LLP
9000 Glenlyon Parkway Worldwide Plaza
Burnaby, British Columbia 825 Eighth Avenue
Canada V5J 5J9 New York, New York
(604) 454-0900 10019-7475
(212) 474-1000
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CALCULATION OF REGISTRATION FEE
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER SHARE (1) AGGREGATE OFFERING PRICE (1) REGISTRATION FEE
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Common Shares.......... 12,000 U.S. $12.76 U.S. $153,120 U.S. $12.39
Deferred Compensation
Obligations (2)........ U.S. $180,000 100% U.S. $180,000 U.S. $14.56
===============================================================================
(1) Estimated solely for the purpose of calculating the registration fee
in accordance with Rule 457 under the Securities Act of 1933 on the
basis of the average of the high and low prices of the Common Shares
reported on the Nasdaq National Market on September 11, 2003.
(2) The Deferred Compensation Obligations are unsecured obligations of
Ballard Power Systems Inc. to pay deferred compensation in the
future in accordance with the terms of the Ballard Power Systems
Inc. Deferred Share Unit Plan for Directors of Ballard Power Systems
Inc.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of
Form S- 8 have been or will be sent or given to participating employees as
specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the
"Securities Act"). In accordance with the rules and regulations of the
Securities and Exchange Commission (the "SEC") and the Note to Part I of Form
S-8, such documents are not being filed with the SEC either as part of this
registration statement filed pursuant to the requirements of Form S-8 (the
"Registration Statement") or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act. Such documents and the
documents incorporated by reference in this Registration Statement pursuant to
Item 3 of Part II of this Registration Statement, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed by Ballard Power Systems
Inc. ("Ballard") with the SEC are incorporated by reference herein and shall
be deemed a part hereof:
1. Ballard's Annual Report on Form 40-F for the fiscal year ended
December 31, 2002 filed on April 23, 2003, as amended by the
Form 40-F/A filed on May 1, 2003.
2. All other reports filed by Ballard under Section 13(a) or 15(d)
of the Securities and Exchange Act of 1934, as amended (the
"Exchange Act") since December 31, 2002.
3. The description of Ballard's common shares contained in
Ballard's Registration Statement on Form F-10 as filed with the
SEC on December 11, 2002, and any amendment or report filed for
the purpose of amending or updating such description.
In addition, all reports and documents filed by Ballard under
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities being offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in and to be part of this Registration Statement
from the filing date of each such document.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under the Canada Business Corporations Act (the "CBCA"), the
registrant may indemnify a present or former director or officer of the
registrant or another individual who acts or acted at the registrant's request
as a director or officer or an individual acting in a similar capacity, of
another entity, against all costs, charges and expenses, including an amount
paid to settle an action or satisfy a judgment, reasonably incurred by such
individual in respect of any civil, criminal, administrative or investigative
action, suit or proceeding (a "Proceeding") to which such individual is made a
party by reason of such individual's association with the registrant or other
entity and
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provided that such individual acted honestly and in good faith with a view to
the best interests of the registrant or, as the case may be, to the best
interests of the other entity for which the individual acted as director or
officer or in a similar capacity at the registrant's request and, in the case
of a criminal or administrative action or proceeding that is enforced by a
monetary penalty, had reasonable grounds for believing that such individual's
conduct was lawful. The indemnification may be made in connection with a
derivative action only with court approval. Any of the individuals described
in the first sentence of this paragraph is entitled to indemnification from
the registrant as a matter of right if he or she was substantially successful
on the merits and fulfilled the conditions set forth above.
Ballard has entered into an indemnity agreement with each director,
officer or employee of Ballard providing that if such director, officer or
employee is or was involved in any threatened, pending or completed Proceeding
by reason of the fact that such director, officer or employee is or was a
director or officer of Ballard or is or was serving at the request of Ballard
as a director or officer of another entity, including service with respect to
employee benefit plans, whether the basis of such Proceeding is an alleged
action in an official capacity while serving as a director or officer, such
director, officer or employee will be indemnified and held harmless by Ballard
to the fullest extent authorized by and in the manner set forth in the CBCA
against all expense, liability and loss reasonably incurred or suffered by
such director, officer or employee in connection therewith. Under such
indemnity agreements, Ballard may indemnify any of its directors, officers or
employees in connection with a Proceeding (or part thereof) initiated by such
director, officer or employee only if such Proceeding (or part thereof) is
authorized by the board of directors of Ballard or if such Proceeding is a
successful Proceeding, in whole or in part, by a director, officer or employee
for claims under an indemnity agreement.
The CBCA provides that the registrant may, subject to and in
accordance with the CBCA, purchase and maintain insurance for the benefit of
any of the individuals described in the first sentence of the first paragraph
of this Item 6 against any liability incurred by such individual in such
individual's capacity as a director or officer of the registrant or as a
director or officer, or similar capacity, of another entity at the
registrant's request.
Ballard maintains a policy of directors' and officers' liability
insurance. The policy insures (a) the directors and officers of Ballard
against losses arising from claims against them for certain of their actual or
alleged wrongful acts (as defined within the insurance policy), (b) Ballard
for payments made pursuant to Ballard's indemnification of its directors and
officers and (c) Ballard when it is directly named in a securities claim. The
policy provides a maximum coverage in any one policy year of U.S. $35 million
in annual claims (subject to a deductible of U.S. $200,000 to U.S. $500,000
per claim, payable by Ballard). The annual premium in the current fiscal year
is U.S. $1,247,000. The premiums for the policy are not allocated between
directors and officers as separate groups.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this Registration
Statement:
Exhibit No. Description
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4.1 Ballard's Restated Articles of Incorporation (filed
as an exhibit to Registration Statement No. 333-89414
and incorporated herein by reference thereto).
4.2 Ballard's By-laws (filed as an exhibit to
Registration Statement No. 333-89414 and incorporated
herein by reference thereto).
4.3 Ballard Power Systems Inc. Deferred Share Unit Plan
for Directors of Ballard Power Systems Inc.
5.1 Opinion of Lang Michener regarding the legality of
the securities being offered hereby.
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23.1 Consent of KPMG LLP.
23.2 Consent of Lang Michener (included in Exhibit 5.1).
24.1 Power of Attorney (included as part of the signature
pages to this Registration Statement).
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 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, 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, each
filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to 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 foregoing
provisions, or otherwise, the registrant has been advised that
in the opinion of the SEC 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.
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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 Burnaby, Province of British
Columbia, Country of Canada on the 12th day of September, 2003.
BALLARD POWER SYSTEMS INC.
By: /s/ Noordin Nanji
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Name: Noordin Nanji
Title: Vice President, Corporate
Strategy and Development and
Corporate Secretary
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Burnaby, Province of
British Columbia, Country of Canada on the 12th day of September, 2003.
BALLARD POWER SYSTEMS INC. DEFERRED
SHARE UNIT PLAN FOR DIRECTORS OF
BALLARD POWER SYSTEMS INC.
By: /s/ Firoz Rasul
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Name: Firoz Rasul
Title: Chairman of the Board
POWER OF ATTORNEY
Each of the registrant and each director or officer of the
registrant whose individual signature appears below hereby appoints Noordin
Nanji and David Smith, and each of them, any of whom may act without the
joinder of the others, as the true and lawful attorney-in-fact and agent of
the undersigned, in any and all capacities, with full power of substitution,
to sign any and all amendments to this Registration Statement (including
post-effective amendments), and, in connection with any registration of
additional securities, to sign any abbreviated registration statement and any
and all amendments thereto, and to file the same with exhibits thereto and
other documents in connection therewith, with the SEC, granting unto said
attorneys-in-fact, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as the undersigned might or could do in
person, hereby ratifying and confirming all that each said attorney-in-fact
and agent, or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ Dennis Campbell Chief Executive Officer September 9, 2003
----------------------------- and President
Dennis Campbell
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/s/ David Smith Chief Financial Officer September 9, 2003
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David Smith
/s/ Firoz Rasul Chairman of the Board September 9, 2003
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Firoz Rasul
/s/ A. Charles Baillie Director September 9, 2003
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A. Charles Baillie
/s/ Ian Bourne Director September 1, 2003
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Ian Bourne
/s/ Susan Cischke Director September 2, 2003
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Susan Cischke
------------------------------ Director
Prof. Jurgen Hubbert
/s/ Ed Kilroy Director September 2, 2003
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Ed Kilroy
/s/ Denise Morrison Director September 8, 2003
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Denise Morrison
/s/ Dr. Gerhard Schmidt Director August 20, 2003
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Dr. Gerhard Schmidt
/s/ Dr. Hans-Joachim Schopf Director September 2, 2003
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Dr. Hans-Joachim Schopf
/s/ John Sheridan Director September 9, 2003
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John Sheridan
/s/ Mark Suwyn Director September 9, 2003
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Mark Suwyn
/s/ Douglas W.G. Whitehead Director August 27, 2003
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Douglas W.G. Whitehead
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AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act,
the undersigned has signed this Registration Statement, solely in the capacity
of the duly authorized representative of the Registrant in the United States
on this 12th day of September, 2003.
By: /s/ Noordin Nanji
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Name: Noordin Nanji
Title: Vice President, Corporate
Strategy and Development and
Corporate Secretary
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INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
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4.1 Ballard's Restated Articles of Incorporation (filed as an exhibit
to Registration Statement No. 333-89414 and incorporated herein by
reference thereto).
4.2 Ballard's By-laws (filed as an exhibit to Registration Statement
No. 333-89414 and incorporated herein by reference thereto).
4.3 Ballard Power Systems Inc. Deferred Share Unit Plan for Directors
of Ballard Power Systems Inc.
5.1 Opinion of Lang Michener regarding the legality of the securities
being offered hereby.
23.1 Consent of KPMG LLP.
23.2 Consent of Lang Michener (included in Exhibit 5.1).
24.1 Power of Attorney (included as part of the signature pages to this
Registration Statement).
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