As filed with the Securities and Exchange Commission on June 5, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
EnerNOC, Inc.
(Exact
Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
87-0698303
(I.R.S.
Employer Identification No.)
EnerNOC, Inc.
One Marina Park Drive, Suite 400
Boston, Massachusetts 02210
(Address of Principal Executive Offices) (Zip Code)
EnerNOC, Inc.
2014 Long-Term Incentive Plan
(Full Title of the Plan)
Timothy G. Healy
Chief
Executive Officer
EnerNOC, Inc.
One Marina Park Drive, Suite 400
Boston, Massachusetts 02210
(Name and Address of Agent for Service)
(617) 224-9900
(Telephone Number, Including Area Code, of Agent For Service)
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
definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one).
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| Large accelerated filer |
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¨ |
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Accelerated filer |
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x |
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| Non-accelerated filer |
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¨ (Do not check if a smaller reporting company) |
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Smaller reporting company |
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¨ |
CALCULATION OF REGISTRATION FEE
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| Title of Each Class of Securities
To Be Registered |
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Amount
To Be Registered(1) |
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Proposed Maximum
Offering Price Per
Share(2) |
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Proposed Maximum
Aggregate
Offering Price |
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Amount of
Registration Fee(3) |
| Common Stock, par value $0.001 per share |
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1,700,000(4) |
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$9.68 |
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$16,456,000 |
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$1,912.19 |
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| (1) |
In addition, pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers such indeterminate number of shares of Common Stock as is
necessary to eliminate any dilutive effect of any future stock split, stock dividend or similar transaction. |
| (2) |
The price of $9.68 per share, which is the average of the high and low price of the Common Stock of the Registrant as reported on the Nasdaq Global Select Market on May 29, 2015, is set forth solely for purposes of
calculating the filing fee pursuant to Rules 457(c) and (h) of the Securities Act and has been used as these shares are to be issued in connection with equity awards that have not been granted and therefore are without a fixed price.
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| (3) |
Calculated pursuant to Section 6(b) of the Securities Act. |
| (4) |
Consists of an additional 1,700,000 shares issuable under the 2014 Long-Term Incentive Plan pursuant to the terms of such plan. |
EXPLANATORY NOTE
This Registration Statement registers additional securities of the same class as other securities for which the registration statement filed on Form S-8 (SEC
File No. 333-196471) of the Registrant is effective. The information contained in the Registrant’s registration statement on Form S-8 (SEC File No. 196471) is hereby incorporated by reference pursuant to General Instruction E of Form
S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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| Exhibit No. |
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Description of Exhibit |
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| Exhibit 5.1 |
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Opinion of Cooley LLP |
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| Exhibit 23.1 |
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Consent of Ernst & Young LLP |
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| Exhibit 23.2 |
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Consent of Cooley LLP (included in Exhibit 5.1 and incorporated herein by reference) |
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| Exhibit 24.1 |
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Power of Attorney (included as part of the signature page to this Registration Statement) |
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 Boston, Commonwealth of Massachusetts, on June 5, 2015.
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| ENERNOC, INC. |
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| By: |
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/s/ Timothy G. Healy |
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Timothy G. Healy |
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Chairman of the Board and Chief Executive Officer |
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of EnerNOC, Inc. (the “Company”), hereby severally constitute and appoint Timothy
G. Healy, David B. Brewster and Matthew J. Cushing, and each of them singly, our true and lawful attorneys, with full power to them, and to each of them singly, to sign for us and in our names in the capacities indicated below, any and all
amendments to this Registration Statement, and all other documents in connection therewith to be filed with the Securities and Exchange Commission, and generally to do all things in our names and on our behalf in such capacities to enable the
Company to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the
capacities indicated on June 5, 2015:
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| Signature |
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Title(s) |
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| /s/ Timothy G. Healy
Timothy G. Healy |
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Chairman of the Board, Chief Executive Officer and Director (principal executive officer) |
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| /s/ Neil Moses
Neil Moses |
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Chief Operating Officer and Chief Financial Officer (principal financial officer and accounting officer) |
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| /s/ David B. Brewster
David B. Brewster |
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President and Director |
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| /s/ James P. Baum
James P. Baum |
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Director |
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| /s/ Arthur Coviello
Arthur Coviello |
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Director |
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| /s/ Richard Dieter
Richard Dieter |
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Director |
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| /s/ TJ Glauthier
TJ Glauthier |
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Director |
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| /s/ Kirk Arnold
Kirk Arnold |
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Director |
INDEX TO EXHIBITS
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| Exhibit No. |
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Description of Exhibit |
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| Exhibit 5.1 |
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Opinion of Cooley LLP |
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| Exhibit 23.1 |
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Consent of Ernst & Young LLP |
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| Exhibit 23.2 |
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Consent of Cooley LLP (included in Exhibit 5.1 and incorporated herein by reference) |
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| Exhibit 24.1 |
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Power of Attorney (included as part of the signature page to this Registration Statement) |
Exhibit 5.1
Miguel J. Vega
T: +1 617 937
2319
mvega@cooley.com
June 5, 2015
EnerNOC, Inc.
One Marina Park Drive, Suite 400
Boston, MA 02210
Re: Registration on Form S-8
Ladies and Gentlemen:
We have acted as legal counsel to
EnerNOC, Inc., a Delaware corporation (the “Company”), and you have requested our opinion in connection with the filing of a registration statement on Form S-8 (the “Registration Statement”) with the
Securities and Exchange Commission covering the offering of up to 1,700,000 shares of the Company’s Common Stock, $0.001 par value per share (the “Shares”), pursuant to the Company’s 2014 Long-Term Incentive Stock
Plan (the “2014 Plan”).
In connection with this opinion, we have examined and relied upon the Registration Statement and related
Prospectus, the Company’s Amended and Restated Certificate of Incorporation and Bylaws, as currently in effect, the 2014 Plan and originals or copies certified to our satisfaction of such other records, documents, certificates, memoranda and
other instruments as we deem necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness and authenticity of all documents submitted to us as originals and the conformity to originals of all documents
submitted to us as copies thereof.
As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not sought to
independently verify such matters. Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware and we express no opinion with respect to the laws of any other jurisdiction. No opinion is expressed herein with
respect to the qualification of the Shares under the securities or blue sky laws of any state or any foreign jurisdiction.
On the basis of the foregoing,
and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the 2014 Plan, Registration Statement and related Prospectus, will be validly issued, fully paid, and nonassessable (except as to shares issued
pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).
We consent
to the filing of this opinion as an exhibit to the Registration Statement.
Sincerely,
Cooley LLP
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| By: |
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/s/ Miguel J. Vega |
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Miguel J. Vega |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the EnerNOC, Inc. 2014 Long-Term Incentive Plan of our
report dated March 12, 2015, with respect to the consolidated financial statements of EnerNOC, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2014, and our report dated March 12, 2015 with respect
to the effectiveness of internal control over financial reporting of EnerNOC, Inc. as of December 31, 2014 included in its Annual Report (Form 10-K/A) for the year ended December 31, 2014, each filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Boston, Massachusetts
June 5, 2015
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