sv8
As filed with the Securities and Exchange Commission on September 28, 2010
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
Orion Energy Systems, Inc.
(Exact name of registrant as specified in its charter)
|
|
|
Wisconsin
|
|
39-1847269 |
(State or other jurisdiction
of incorporation or organization)
|
|
(I.R.S. Employer
Identification No.) |
|
|
|
2210 Woodland Drive
Manitowoc, Wisconsin
|
|
54220 |
(Address of principal executive offices)
|
|
(Zip Code) |
Orion Energy Systems, Inc. Employee Stock Purchase Plan
(Full title of the plan)
|
|
|
Neal R. Verfuerth Chief Executive Officer
Orion Energy Systems, Inc.
2210 Woodland Drive
Manitowoc, Wisconsin
(920) 892-9340
(Name, address and telephone number, including
area code, of agent for service)
|
|
Copy to:
Steven R. Barth, Esq.
Foley & Lardner LLP
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
|
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
|
|
|
|
|
|
|
Large accelerated filer o
|
|
Accelerated filer þ
|
|
Non-accelerated filer o
|
|
Smaller reporting company o |
|
|
|
|
(Do not check if a smaller reporting company) |
|
|
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title of |
|
|
Amount |
|
|
Proposed Maximum |
|
|
Proposed Maximum |
|
|
Amount of |
|
|
Securities to be |
|
|
to be |
|
|
Offering Price Per |
|
|
Aggregate Offering |
|
|
Registration |
|
|
Registered |
|
|
Registered(1) |
|
|
Share(2) |
|
|
Price(2) |
|
|
Fee |
|
|
Common Stock,
no par value |
|
|
2,500,000 shares |
|
|
$3.03 |
|
|
$7,562,500 |
|
|
$540 |
|
|
Common Share
Purchase Rights |
|
|
2,500,000 rights |
|
|
(3) |
|
|
(3) |
|
|
(3) |
|
|
|
|
|
(1) |
|
Pursuant to Rule 416 under the Securities Act of 1933, as amended, this Registration
Statement covers, in addition to the number of shares stated above, an indeterminate number of
shares of common stock, no par value (Common Stock), that may become issuable under the
Orion Energy Systems, Inc. Employee Stock Purchase Plan by reason of stock splits, stock
dividends or similar transactions. |
|
(2) |
|
Estimated pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as amended,
solely for the purpose of calculating the registration fee on the basis of the average of the
high and low prices of the Common Stock as reported on the NYSE Amex LLC on September 21,
2010. |
|
(3) |
|
The value attributable to the Common Share Purchase Rights is reflected in the market price
of the Common Stock to which the Rights are attached. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified in Part I are not required to
be filed with the Securities and Exchange Commission (the Commission) as part of this Form S-8
Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents previously filed with the Commission by Orion Energy Systems, Inc.
(hereinafter referred to as the Company or the Registrant) are hereby incorporated herein by
reference:
|
(a) |
|
The Companys Annual Report on Form 10-K for the fiscal year ended March 31,
2010; |
|
|
(b) |
|
The Companys Quarterly Report on Form 10-Q for the quarter ended June 30,
2010; |
|
|
(c) |
|
The Companys Current Reports on Form 8-K filed April 2, May 4, May 14, June
25, July 2, July 23 and August 30, 2010; and |
|
|
(d) |
|
The description of the Common Stock and the Common Share Purchase Rights
contained in the Companys Registration Statement on Form 8-A (File No. 001-33887)
filed with the Commission on March 31, 2010 pursuant to Section 12(b) of the Securities
Exchange Act of 1934, as amended (the Exchange Act), including any amendment or
report filed for the purpose of updating such description. |
All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act after the date of filing of this Registration Statement and prior to such
time as the Company files a post-effective amendment to this Registration Statement that indicates
that all securities offered hereby have been sold or that 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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article IX of the Companys Amended and Restated Bylaws (the Bylaws) provides that, to the
fullest extent permitted or required by Wisconsin law, the Company will indemnify all of its
directors and officers, any trustee of any of the Companys employee benefit plans and any person
who is
serving at the Companys request as a director, officer, employee or agent of another entity,
against
-2-
certain liabilities and losses incurred in connection with these positions or services.
The Company will indemnify these parties to the extent the parties are successful in the defense of
a proceeding and in proceedings in which the party is not successful in the defense of the
proceeding unless, in the latter case only, it is determined that the party breached or failed to
perform his or her duties to the Company and this breach or failure constituted:
|
|
|
a willful failure to deal fairly with the Company or the shareholders of the
Company in connection with a matter in which the director or officer has a material
conflict of interest; |
|
|
|
|
a violation of criminal law, unless the director or officer had reasonable
cause to believe his or her conduct was unlawful; |
|
|
|
|
a transaction from which the director or officer derived an improper personal
profit; or |
|
|
|
|
willful misconduct. |
The Bylaws provide that the Company is required to indemnify its directors and executive
officers and may indemnify its employees and other agents to the fullest extent required or
permitted by Wisconsin law. Additionally, the Bylaws require the Company under certain
circumstances to advance reasonable expenses incurred by a director or officer who is a party to a
proceeding for which indemnification may be available.
Wisconsin law further provides that it is the public policy of the State of Wisconsin to
require or permit indemnification, allowance of expenses and insurance to the extent required or
permitted under Wisconsin law for any liability incurred in connection with a proceeding involving
a federal or state statute, rule or regulation regulating the offer, sale or purchase of
securities.
Under Wisconsin law, a director is not personally liable for breach of any duty resulting
solely from his or her status as a director, unless it is proved that the directors conduct
constituted conduct described in the bullet points above. In addition, the Company intends to
obtain directors and officers liability insurance that will insure against certain liabilities,
including liabilities under the Securities Act of 1933, as amended, subject to applicable
restrictions.
Item 7. Exemption from Registration Claimed.
Not Applicable.
-3-
Item 8. Exhibits.
The following exhibits have been filed (except where otherwise indicated) as part of this
Registration Statement:
|
|
|
Exhibit No. |
|
Exhibit |
(4.1)
|
|
Amended and Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit 3.3 to the Companys
Registration Statement on Form S-1 (Reg. No. 333-145569)). |
|
|
|
(4.2)
|
|
Amended and Restated Bylaws of the Company (incorporated by
reference to Exhibit 3.5 to the Companys Registration
Statement on Form S-1 (Reg. No. 333-145569)). |
|
|
|
(4.3)
|
|
Rights Agreement, dated as of January 7, 2009, between Orion
Energy Systems, Inc. and Wells Fargo Bank, N.A., which
includes as Exhibit A thereto the Form of Right Certificate
and as Exhibit B thereto the Summary of Common Share Purchase
Rights (incorporated by reference to Exhibit 4.1 to the
Companys Registration Statement on Form 8-A filed January 8,
2009 (File No. 001-33887)). |
|
|
|
(5)
|
|
Opinion of Foley & Lardner LLP. |
|
|
|
(23.1)
|
|
Consent of Grant Thornton LLP. |
|
|
|
(23.2)
|
|
Consent of Foley & Lardner LLP (contained in Exhibit 5 hereto). |
|
|
|
(24)
|
|
Power of Attorney (included on the signature page to this
Registration Statement). |
|
|
|
(99.1)
|
|
Orion Energy Systems, Inc. Employee Stock Purchase Plan. |
|
|
|
(99.2)
|
|
Orion Energy Systems, Inc. Employee Stock Purchase Plan
Summary of Terms. |
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; 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;
-4-
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section
13 or Section 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 herein, 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.
(4) That, for the purpose of determining liability of the Registrant under the Securities Act
of 1933 to any purchaser in the initial distribution of the securities, the undersigned Registrant
undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this
registration statement, regardless of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned Registrant will be a seller to the purchaser and will be considered
to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of
the undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus relating to the offering
containing material information about the undersigned Registrant or its securities provided
by or on behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrants annual report pursuant
to Section 13(a) or 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 herein, 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 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
Commission such indemnification is against public policy as expressed in the Securities Act of 1933
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
-5-
appropriate jurisdiction the question whether such indemnification by it is against public policy
as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such
issue.
-6-
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 Manitowoc, State of Wisconsin, on September 28, 2010.
|
|
|
|
|
|
ORION ENERGY SYSTEMS, INC.
|
|
|
By: |
/s/ Neal R. Verfuerth
|
|
|
|
Neal R. Verfuerth |
|
|
|
Chief Executive Officer |
|
|
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has
been signed below by the following persons in the capacities on September 28, 2010. Each person
whose signature appears below constitutes and appoints Neal R. Verfuerth and Scott R. Jensen, and
each of them, his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and in his or her name, place and stead, in any and
all capacities, to sign any and all amendments (including post-effective amendments) to this
Registration Statement and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto each said
attorneys-in-fact and agents, and each of them, 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 or she might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
|
|
|
Signature |
|
Title |
|
/s/ Neal R. Verfuerth
Neal R. Verfuerth
|
|
Chief Executive Officer and Director (Principal Executive Officer) |
|
|
|
/s/ Scott R. Jensen
Scott R. Jensen
|
|
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
|
|
|
/s/ James R. Kackley
James R. Kackley
|
|
Chairman of the Board |
|
|
|
/s/ Michael W. Altschaefl
|
|
Director |
Michael W. Altschaefl |
|
|
|
|
|
|
|
Director |
Michael J. Potts |
|
|
|
|
|
/s/ Thomas A. Quadracci
Thomas A. Quadracci
|
|
Director |
|
|
|
/s/ Elizabeth Gamsky Rich
Elizabeth Gamsky Rich
|
|
Director |
|
|
|
/s/ Thomas N. Schueller
Thomas N. Schueller
|
|
Director |
|
|
|
/s/ Mark C. Williamson
Mark C. Williamson
|
|
Director |
-7-
EXHIBIT INDEX
|
|
|
Exhibit No. |
|
Exhibit |
(4.1)
|
|
Amended and Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit 3.3 to the Companys
Registration Statement on Form S-1 (Reg. No. 333-145569)). |
|
|
|
(4.2)
|
|
Amended and Restated Bylaws of the Company (incorporated by
reference to Exhibit 3.5 to the Companys Registration
Statement on Form S-1 (Reg. No. 333-145569)). |
|
|
|
(4.3)
|
|
Rights Agreement, dated as of January 7, 2009, between Orion
Energy Systems, Inc. and Wells Fargo Bank, N.A., which
includes as Exhibit A thereto the Form of Right Certificate
and as Exhibit B thereto the Summary of Common Share Purchase
Rights (incorporated by reference to Exhibit 4.1 to the
Companys Registration Statement on Form 8-A filed January 8,
2009 (File No. 001-33887)). |
|
|
|
(5)
|
|
Opinion of Foley & Lardner LLP. |
|
|
|
(23.1)
|
|
Consent of Grant Thornton LLP. |
|
|
|
(23.2)
|
|
Consent of Foley & Lardner LLP (contained in Exhibit 5 hereto). |
|
|
|
(24)
|
|
Power of Attorney (included on the signature page to this
Registration Statement). |
|
|
|
(99.1)
|
|
Orion Energy Systems, Inc. Employee Stock Purchase Plan. |
|
|
|
(99.2)
|
|
Orion Energy Systems, Inc. Employee Stock Purchase Plan
Summary of Terms. |
-8-