Securities Registration: Employee Benefit Plan (s-8)
June 22 2016 - 5:06PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on June 22,
2016
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
U.S. GEOTHERMAL INC.
(Exact name of registrant as specified in its charter)
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Delaware
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84-1472231
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(State or other jurisdiction
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(IRS Employer Identification No.)
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of incorporation or organization)
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390 E Parkcenter Blvd, Ste 250, Boise, Idaho
83706
(Address of principal executive offices) (Zip code)
U.S. Geothermal Inc. 2009 Stock Incentive Plan
(Full title of the plans)
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Kerry Hawkley
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With a copy to:
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Chief Financial Officer
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Kimberley R. Anderson
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U.S. Geothermal Inc.
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Dorsey & Whitney LLP
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390 E. Parkcenter Blvd., Ste 250,
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701 Fifth Avenue, Suite 6100
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Boise, ID 83706
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Seattle, WA 98104
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(Name and Address of agent for service)
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(206) 903-8800
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(208) 424-1027
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(Telephone number, including area code, of agent for
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service)
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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 [ ]
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Accelerated filer [ ]
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Non-accelerated filer [ ]
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Smaller reporting company [X]
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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
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Amount to
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Proposed maximum
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Proposed maximum
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Amount of
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to be registered
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be
registered
(1)
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offering price
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aggregate offering
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registration fee
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per share
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price
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Common stock, par value $0.001 per share
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4,582,963 shares
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(2)
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$
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0.78
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(3)
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$
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3,574,711.14
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(3)
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$
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359.97
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Common stock, par value $0.001 per share
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7,400,221 shares
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(4)
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$
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0.55
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(5)
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$
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4,070,121.55
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(5)
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$
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409.86
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Totals:
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11,983,184 shares
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$
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7,644,832.69
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$
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769.83
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(6)
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(1)
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Pursuant to Rule 416(a) of the Securities Act of 1933, as
amended, this registration statement also covers any additional securities
that may be offered or issued to prevent dilution resulting from stock
splits, stock dividends or similar transactions in accordance with the
provisions of the Registrant’s 2009 Stock Incentive Plan (the
“Plan”).
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(2)
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Represents shares issuable upon exercise of options
available for grant or pursuant to awards under the Plan.
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(3)
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Estimated in accordance with Rule 457(h)(1) and Rule
457(c) under the Securities Act solely for the purpose of calculating the
registration fee, based on the average of the high and low sales prices of
the Common Stock as reported by the NYSE MKT LLC on June 20,
2016.
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(4)
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Represents shares issuable upon exercise of currently
outstanding options or vesting of awards previously granted under the
Plan.
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(5)
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Estimated in accordance with Rule 457(h) under the
Securities Act solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(h), the proposed maximum offering price, per share
and in the aggregate, is calculated on the basis of $0.55, the weighted
average exercise price of the outstanding options described in note
(4).
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(6)
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A registration fee in the aggregate amount of $140.98 was
previously paid by the Registrant in connection with the filing of a
Registration Statement on Form S-3 (Registration No. 333-209793), first
filed with the Securities and Exchange Commission on February 29, 2016 and
subsequently withdrawn prior to the sale of any securities thereunder.
Pursuant to Rule 457(p) under the Securities Act, the Registrant hereby
applies $140.98 of the previously paid filing fee against amounts due
herewith.
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This registration statement on
Form S-8 registers shares of Common Stock of U.S. Geothermal Inc. (the
“Registrant”) to be issued pursuant to the Registrant’s 2009 Stock Incentive
Plan. The aggregate number of shares of the Registrant’s common stock that may
be issued under all stock-based awards made under the 2009 Stock Incentive Plan
shall be equal to 15% of the Registrant’s issued and outstanding shares of
common stock (calculated as of the first day of each fiscal year while the 2009
Stock Incentive Plan is in effect). Pursuant to the terms of the Plan, if an
award is terminated, forfeited or cancelled without issuance of any shares or if
shares covered by an award are not issued for any other reason, then the shares
previously set aside for such award will be available for future awards under
the Plan. If shares of restricted stock awarded under the Plan are forfeited or
otherwise reacquired by the Registrant prior to vesting, those shares will again
be available for awards under the Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In accordance with the Note to
Part I of Form S-8, the information specified by Part I (Items 1 and 2) is
omitted from this registration statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby
incorporates by reference into this registration statement the following
documents, which have been filed with the Securities and Exchange Commission
(the “Commission”):
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(a)
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Our Annual Report on Form 10-K for the year ended
December 31, 2015 filed on March 10, 2016;
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(b)
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All other reports filed with the Commission pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”) since the end of the fiscal year covered by the
Registrant’s Annual Report referred to in (a) above; and
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(c)
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The description of our common stock contained in our
registration statement on Form 8-A filed on April 15, 2008 with the
Commission under Section 12 of the Securities Exchange Act, including any
amendment or report filed for purposes of updating such
description.
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All documents filed pursuant to
Sections 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 offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this registration statement and to be a part
hereof from the date of filing of such documents. Any document or any statement
contained in a document incorporated or deemed to be incorporated herein by
reference shall be deemed to be modified or superseded for purposes of this
registration statement to the extent that a subsequently filed document or a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated herein by reference modifies or
supersedes such document or such statement. Any such document or 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 (the “Delaware Law”) authorizes a court to award, or a
corporation’s board of directors to grant, indemnity to directors and officers
in terms sufficiently broad to permit such indemnification under certain
circumstances for liabilities, (including reimbursement for expenses incurred)
arising under the Securities Act of 1933, as amended (the “Securities Act”).
Article XII of the Certificate of Incorporation of U.S. Geothermal Inc. (“we”,
“us” or “our company”) provides for indemnification of officers, directors and
other employees of U.S. Geothermal to the fullest extent permitted by Delaware
Law. Article XIII of the Certificate of Incorporation of our company provides
that directors shall not be personally liable to our company or its stockholders
for monetary damages for breach of fiduciary duty as a director, except (i) for
any breach of a director’s duty of loyalty to our company or our stockholders,
(ii) for acts and omissions that are not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware Law, or (iv) for any transaction from which the director derived
any improper benefit.
Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers or persons controlling the Registrant pursuant to the foregoing
provisions, the Registrant has been informed that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
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;
(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 a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective 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;
Provided, however, that
paragraphs (1)(i) and (1)(ii) above 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.
(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.
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.
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 Commission 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.
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 Boise, State of Idaho
on June 20, 2016.
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U.S. GEOTHERMAL INC.
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By:
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/s/
Kerry D. Hawkley
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Kerry D. Hawkley
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Chief Financial Officer
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(Principal Financial and Accounting Officer)
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POWER OF ATTORNEY
Each person whose signature
appears below hereby constitutes and appoints Dennis J. Gilles, Kerry D. Hawkley
and Douglas J. Glaspey, and each of them, his true and lawful attorneys-in-fact
and agents, each acting alone, with the powers of substitution and revocation,
for him and in his name, place and stead, in any and all capacities, to sign
this registration statement on Form S-8, and any and all amendments (including
post-effective amendments) thereto, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto such attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming that all such attorneys-in-fact and agents or any of them, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
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:
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Name
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Title
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Date
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/s/ Dennis J.
Gilles
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Chief Executive Officer and Director
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June 20, 2016
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Dennis J. Gilles
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(Principal Executive Officer)
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/s/ Kerry D.
Hawkley
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Chief Financial Officer and Secretary
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June 20, 2016
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Kerry D. Hawkley
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(Principal Financial and Accounting Officer)
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/s/ Douglas J.
Glaspey
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President, Chief Operating Officer and Director
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June 20, 2016
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Douglas J. Glaspey
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/s/ John H. Walker
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Chairman and Director
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June 20, 2016
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John H. Walker
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/s/ Paul A. Larkin
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Director
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June 20, 2016
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Paul A. Larkin
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/s/ Leland L. Mink
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Director
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June 20, 2016
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Leland L. Mink
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