As filed with the Securities and Exchange Commission on August 28, 2008
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GT SOLAR INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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03-0606749
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243
Daniel Webster Highway |
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03054
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GT Solar International, Inc. 2008 Equity Incentive Plan
Second Amended and Restated GT Solar International, Inc. 2006 Stock Option Plan
(Full title of the plan)
Edwin
L. Lewis
General Counsel
GT Solar International, Inc.
243 Daniel Webster Highway
Merrimack,
New Hampshire 03054
Telephone: (603) 883-5200
(Name, address and telephone number, including area code, of agent for service)
Copy to:
Dennis M.
Myers, P.C.
Kirkland & Ellis LLP
200 East Randolph
Drive
Chicago, Illinois 60601
Telephone: (312) 861-2000
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.
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Large accelerated filer o |
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Accelerated filer o |
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Non-accelerated filer x |
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Smaller reporting company o |
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(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Title of securities to be |
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Amount to be |
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Proposed maximum |
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Proposed maximum |
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Amount of |
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Common Stock, par value $0.01 per share |
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15,000,000 |
(3) |
$ |
13.99 |
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$ |
209,805,000 |
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$ |
8,248 |
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Common Stock, par value $0.01 per share |
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6,381,239 |
(4) |
$ |
3.86 |
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$ |
24,645,537 |
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$ |
969 |
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Total |
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21,381,239 shares |
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$ |
234,450,537 |
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$ |
9,217 |
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(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of common stock which become issuable under the above-named plan by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of our outstanding shares of common stock.
(2) With respect to the 15,000,000 shares of common stock that are currently authorized for issuance under the 2008 Equity Incentive Plan (the “2008 Plan”), the proposed maximum offering price is calculated pursuant to paragraphs (c) and (h) of Rule 457 under the Securities Act on the basis of the average of the high and low sale prices for the shares of common stock as reported on The Nasdaq Global Select Market on August 21, 2008 solely for the purpose of calculating the registration fee. With respect to the 6,381,239 shares of common stock issuable upon the exercise of stock options granted under the Second Amended and Restated GT Solar International, Inc. 2006 Stock Option Plan (the “2006 Plan”), the proposed maximum offering price is calculated pursuant to Rule 457(h) under the Securities Act based on an exercise price of $1.66 for 2,859,264 options granted under the 2006 Plan and an exercise price of $5.64 for 3,521,975 options granted under the 2006 Plan.
(3) Represents shares of common stock authorized for issuance under the 2008 Plan.
(4) Represents shares of common stock issuable upon the exercise of stock options granted under the 2006 Plan.
* The documents containing the information specified in Part I will be delivered in accordance with Rule 428(b)(1) under the Securities Act. Such documents are not required to be, and are not, filed with the Securities and Exchange Commission (the “Commission”), either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents, and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
The following documents, which have been filed by GT Solar International, Inc. (the “Company”) with the Commission, are incorporated in this Registration Statement by reference:
All reports and other 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 this Registration Statement, but prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of 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.
The validity of the common stock offered hereby will be passed upon for the Company by Kirkland & Ellis LLP (a partnership that includes professional corporations), Chicago, Illinois. Kirkland & Ellis LLP represents entities affiliated with GFI Energy Ventures, LLC and Oaktree Capital Management, L.P., which indirectly beneficially own shares of the Company’s common stock, in connection with various legal matters.
The Company is incorporated under the laws of the State of Delaware. Section 145 (“Section 145”) of the Delaware General Corporation Law, as the same exists or may hereafter be amended (the “DGCL”), provides that a Delaware corporation may indemnify any persons who were, are or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation, or is or was serving at the request of such corporation as a
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director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was illegal. A Delaware corporation may indemnify any persons who are, were or are threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation by reasons of the fact that such person was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests, provided that no indemnification is permitted without judicial approval if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer, director, employee or agent is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director has actually and reasonably incurred.
Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against him and incurred by him in any such capacity, arising out of his status as such, whether or not the corporation would otherwise have the power to indemnify him under Section 145.
The Registrant’s certificate of incorporation provides that to the fullest extent permitted by theDGCL, none of the Registrant’s directors shall be liable to it or its stockholders for monetary damages for a breach of fiduciary duty. In addition, the Registrant’s certificate of incorporation provides for indemnification of any person who was or is made, or threatened to be made, a party to or is involved in any action, suit or other proceeding, whether, civil, criminal, administrative or investigative, because of his or her status as a director or officer of the Registrant, or service at the request of the Registrant as a director or officer of another corporation, as a partner or officer of a partnership, as a member or officer of a limited liability company, as a principal or officer of a joint venture, as a trustee or officer of a trust or in any comparable capacity in any other enterprise, including service with respect to an employee benefit plan, to the fullest extent authorized under the DGCL against all expenses, liabilities and losses actually and reasonably incurred or suffered by such person in connection therewith. Further, all of the directors and officers of the Registrant are covered by insurance policies maintained and held in effect by the Registrant against certain liabilities for actions taken in their capacities as such, including liabilities under the Securities Act.
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or 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
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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 a 20% 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;
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 reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Merrimack, State of New Hampshire, on August 28, 2008.
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GT SOLAR INTERNATIONAL, INC. |
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By: |
/s/ Thomas M. Zarrella |
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Name: |
Thomas M. Zarrella |
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Title: |
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Thomas M. Zarrella, Robert W. Woodbury, Jr. and Edwin L. Lewis 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 (including his or her capacity as a director and/or officer) to sign any or all amendments (including post-effective amendments) to this registration statement and any subsequent 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 said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that 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 indicated on August 28, 2008.
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Signature |
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Title |
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/s/ Thomas M. Zarrella |
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President, Chief Executive Officer and Director |
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Thomas M. Zarrella |
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(Principal Executive Officer) |
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/s/ Robert W. Woodbury, Jr. |
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Chief Financial Officer |
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Robert W. Woodbury, Jr. |
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(Principal Financial Officer) |
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/s/ Richard E. Johnson |
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Vice President, Finance and Corporate Controller |
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Richard E. Johnson |
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(Principal Accounting Officer) |
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/s/ Ernest L. Godshalk |
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Director |
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Ernest L. Godshalk |
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/s/ Richard K. Landers |
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Director |
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Richard K. Landers |
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/s/ J. Bradford Forth |
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Director |
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J. Bradford Forth |
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/s/ J. Michal Conaway |
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Director |
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J. Michal Conaway |
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/s/ Fusen E. Chen |
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Director |
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Fusen E. Chen |
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EXHIBIT INDEX
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Exhibit |
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Description |
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5.1 |
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Opinion of Kirkland & Ellis LLP with respect to the legality of the shares of common stock being registered hereby. |
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23.1 |
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Consent of Ernst & Young LLP. |
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23.2 |
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Consent of Kirkland & Ellis LLP (included in Exhibit 5.1). |
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24.1 |
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Power of Attorney of certain officers and directors of the Company to file future amendments (set forth on the signature page of this Registration Statement). |
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