As filed
with the Securities and Exchange Commission on January 27, 2009
Registration
No. 333-________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
PREMIER
POWER RENEWABLE ENERGY, INC.
(Exact
name of registrant as specified in its charter)
Delaware
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13-4343369
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(State
or other jurisdiction of
incorporation
or organization)
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(IRS
Employer Identification No.)
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4961
Windplay Drive, Suite 100
El Dorado Hills, CA
95762
(Address
of principal executive offices) (Zip Code)
Premier Power Renewable
Energy, Inc.
2008 Equity Incentive
Plan
(full
title of the plan)
Corporation
Service Company
2711
Centerville Road, Suite 40
Wilmington, DE
19808
(Name
and address of agent for service)
(302)
636-5401
(Telephone
number, including area code, of agent for service)
With a
copy to:
Dominador
Tolentino, Esq.
Jamie
H. Kim, Esq.
RICHARDSON
& PATEL LLP
10900
Wilshire Boulevard, Suite 500
Los
Angeles, California 90024
(310)
208-1182
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
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Proposed
Maximum Offering Price Per Security
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Proposed
Maximum Aggregate Offering Price
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Amount
of Registration Fee
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Common
Stock, $.0001 par value
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2,951,875
(1
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)
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$
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3.75
(2
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)
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$
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11,069,531
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$
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617.68
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Total
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2,951,875
(1
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)
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$
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3.75
(2
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)
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$
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11,069,531
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$
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617.68
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(1)
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Represents
shares of common stock underlying our 2008 Equity Incentive
Plan.
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(2)
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Estimated
solely for purposes of calculating the registration fee in accordance with
Rule 457(c) of the Securities Act of 1933, as amended, using the
average of the high and low prices as reported on the Over-The-Counter
Bulletin Board on January 22, 2009.
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PART
I
Item
1. Plan
Information.
The
documents containing the information specified in Item 1 will be sent or given
to participants in the Premier Power Renewable Energy, Inc. 2008 Equity
Incentive Plan as specified by Rule 428(b)(1) of the Securities
Act. Such documents are not required to be and are not filed with the
Securities and Exchange Commission (the “SEC”) either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 of the Securities Act. These 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.
Item
2. Registrant
Information and Employee Plan Annual Information.*
Upon
written or oral request, any of the documents incorporated by reference in Item
3 of Part II of this Registration Statement (which documents are incorporated by
reference in this Section 10(a) Prospectus), other documents required to be
delivered to eligible employees, non-employee directors, and consultants,
pursuant to Rule 428(b) are available without charge by contacting:
Premier
Power Renewable Energy, Inc.
Attention:
Teresa Kelley, Chief Financial Officer
4961
Windplay Drive, Suite 100
El
Dorado Hills, CA 95762
(916)
939-0400
*
Information required by Part I
to be contained in Section 10(a) prospectus is omitted from the Registration
Statement in accordance with Rule 428 under the Securities Act of 1933, and Note
to Part I of Form S-8.
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
documents listed below. In addition, all documents subsequently filed
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act
of 1934 (the “Exchange Act”), prior to the filing of a post-effective amendment
that indicates that all securities offered 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.
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Reference
is made to our annual report on Form 10-K for the fiscal year ended
December 31, 2007, as filed with the SEC on April 7, 2008, which is hereby
incorporated by reference.
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·
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Reference
is made to our current reports on Form 8-K filed with the SEC on January
14, 2008, August 22, 2008, August 29, 2008, September 11, 2008, October
30, 2008, November 6, 2008, November 26, 2008, December 10, 2008, December
29, 2008, and January 16, 2009, which are hereby incorporated by
reference.
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·
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Reference
is made to our quarterly reports on Form 10-Q for the quarters ended March
31, 2008, June 30, 2008, and September 30, 2008, as filed with the SEC on
May 15, 2008, August 14, 2008, and November 17, 2008, respectively, which
are hereby incorporated by
reference.
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·
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The
description of our common stock is incorporated by reference to our
Registration Statement on Form SB-2 (File No. 333-140637), filed with the
SEC on December 18, 2007.
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Item
4. Description
of Securities.
The
following information describes our capital stock and provisions of our
certificate of incorporation and our bylaws, all as in effect upon the closing
of the Share Exchange. This description is only a
summary. The reader should also refer to our certificate of
incorporation and bylaws that have been incorporated by reference or filed with
the SEC as exhibits.
General
Our
authorized capital stock consists of 100,000,000 shares of common stock, par
value $0.0001 per share, and 20,000,000 shares of preferred stock, par value
$0.0001 per share, of which 5,000,000 is designated as Series A Convertible
Preferred Stock (“Series A Preferred Stock”).
Common
Stock
Holders
of our common stock are entitled to one vote per share on all matters submitted
to a vote of the stockholders, including the election of directors. Generally,
all matters to be voted on by stockholders must be approved by a majority of the
votes entitled to be cast by all shares of our common stock that are present in
person or represented by proxy. Holders of our common stock representing fifty
percent (50%) of our capital stock issued, outstanding, and entitled to vote,
represented in person or by proxy, are necessary to constitute a quorum at any
meeting of our stockholders. A vote by the holders of a majority of our
outstanding shares is required to effectuate certain fundamental corporate
changes such as liquidation, merger or an amendment to our certificate of
incorporation. Our certificate of incorporation does not provide for cumulative
voting in the election of directors.
The
holders of shares of our common stock will be entitled to such cash dividends as
may be declared from time to time by our board of directors from funds available
therefore.
Upon
liquidation, dissolution, or winding up, the holders of shares of our common
stock will be entitled to receive pro rata all assets available for distribution
to such holders after distribution of assets to the holders of Series A
Preferred.
In the
event of any merger or consolidation with or into another company in connection
with which shares of our common stock are converted into or exchangeable for
shares of stock, other securities, or property (including cash), all holders of
our common stock will be entitled to receive the same kind and amount of shares
of stock and other securities and property (including cash).
Holders
of our common stock have no pre-emptive rights and no conversion rights, and
there are no redemption provisions applicable to our common stock.
Series
A Convertible Preferred Stock
The
following is a summary of the preferences and rights contained in the
Certificate of Designation of Preferences, Rights and Limitations (the “Series A
Certificate”) of the Series A Convertible Preferred Stock (“Series A Preferred”)
and is qualified in its entirety by reference to the Series A Certificate, which
is attached as Exhibit 3.5 to our Current Report on Form 8-K filed September 11,
2008.
Voting
Rights
Except as
otherwise provided in the Series A Certificate or by law, each holder of shares
of Series A Preferred shall have no voting rights. As long as any shares of
Series A Preferred are outstanding, however, the Company shall not, without the
affirmative vote of the holders of a majority of the then outstanding shares of
the Series A Preferred, (a) alter or change adversely the powers, preferences,
or rights given to the Series A Preferred or alter or amend the Series A
Certificate, (b) authorize or create any class of stock ranking as to dividends,
redemption or distribution of assets upon a Liquidation (as defined in Section 5
of the Series A Certificate) senior to or otherwise
pari
passu
with the Series
A Preferred, (c) amend its certificate of incorporation or other charter
documents in any manner that adversely affects any rights of the holders of
Series A Preferred, (d) increase the number of authorized shares of Series A
Preferred, or (e) enter into any agreement with respect to any of the
foregoing.
Conversion Rights
Conversion
at the Holder’s Option
Each
share of Series A Preferred is convertible at any time and from time to time
after the issue date at the holder’s option into shares of the Company’s common
stock (subject to beneficial ownership limitations as set forth in Section
6(c) of the Series A Certificate) determined by dividing the Stated Value of
such share of Series A Preferred by the Conversion Price (each as defined
below).
Stated
Value
. Each share of Series A Preferred shall have a stated
value equal to $2.00.
Conversion
Price
. The conversion price for the Series A Preferred shall
equal $2.00, subject to adjustment as provided in the Series A
Certificate.
Automatic
Conversion
Upon a
Qualified Public Offering (as defined below) all outstanding shares of Series A
Preferred plus all accrued but unpaid dividends shall automatically be converted
into shares of the Company’s common stock at the Conversion Price, subject to
Section 6(c) of the Series A Certificate.
“Qualified
Public Offering” means (i) a firm-commitment underwritten public offering for
gross proceeds of not less than $25,000,000 and a public offering price of not
less than $4.00 (subject to adjustment for reverse and forward stock splits,
stock dividends, stock combinations and other similar transactions of the common
stock that occur after the Original Issue Date, as defined below) or (ii) a
listing on any level of the Nasdaq Stock Market.
“Original
Issue Date” means the date of the first issuance of any shares of the Series A
Preferred regardless of the number of transfers of any particular shares of
Series A Preferred and regardless of the number of certificates which may be
issued to evidence such Series A Preferred.
Beneficial
Ownership Limitation
Holders
of our Series A Preferred are restricted from converting their shares of Series
A Preferred to Common Stock if the number of shares of Common Stock to be issued
pursuant to such conversion would cause the number of shares of Common Stock
beneficially owned by such holder, together with its affiliates, at such time to
exceed 9.99% of the then issued and outstanding shares of Common Stock;
provided, however, that such holder may waive this limitation upon 61 days’
notice to the Company.
Adjustment
for Stock Dividends and Stock Splits
If the
Company, at any time while Series A Preferred is outstanding: (A) pays a stock
dividend or otherwise makes a distribution or distributions payable in shares of
common stock on shares of common stock or any other Common Stock Equivalents (as
defined in Section 1 of the Series A Certificate, and, which, for avoidance of
doubt, shall not include any shares of common stock issued by the Company upon
conversion of, or payment of a dividend on, Series A Preferred); (B) subdivides
outstanding shares of common stock into a larger number of shares; (C) combines
(including by way of a reverse stock split) outstanding shares of common stock
into a smaller number of shares; or (D) issues, in the event of a
reclassification of shares of the common stock, any shares of capital stock of
the Company, then the Conversion Price shall be multiplied by a fraction of
which the numerator shall be the number of shares of common stock (excluding any
treasury shares of the Company) outstanding immediately before such event and of
which the denominator shall be the number of shares of common stock outstanding
immediately after such event.
Adjustment
for Subsequent Equity Sales
If, at
any time while Series A Preferred is outstanding, the Company or any of its
subsidiaries sells or grants any option to purchase or sells or grants any right
to reprice its securities, or otherwise disposes of or issues (or announces any
sale, grant or any option to purchase or other disposition) any common stock or
Common Stock Equivalents (as defined in Section 1 of the Series A Certificate)
entitling any person to acquire shares of common stock at an effective price per
share that is lower than the then Conversion Price (such lower price, the “Base
Conversion Price” and such issuances collectively, a “Dilutive Issuance”) (if
the holder of the common stock or Common Stock Equivalents so issued shall at
any time, whether by operation of purchase price adjustments, reset provisions,
floating conversion, exercise or exchange prices or otherwise, or due to
warrants, options or rights per share which are issued in connection with such
issuance, be entitled to receive shares of common stock at an effective price
per share that is lower than the Conversion Price, such issuance shall be deemed
to have occurred for less than the Conversion Price on such date of the Dilutive
Issuance), then (i) as to any Dilutive Issuances that occur on or before the 24
month anniversary of the Original Issue Date (as defined above, and the
Conversion Price shall be reduced to equal the Base Conversion Price and (ii) as
to any Dilutive Issuances that occur after the 24 month anniversary of the
Original Issue Date and until Series A Preferred is no longer outstanding, the
Conversion Price shall be reduced by multiplying the Conversion Price by a
fraction, the numerator of which is the number of shares of common stock issued
and outstanding immediately prior to the Dilutive Issuance plus the number of
shares of common stock which the offering price for such Dilutive Issuance would
purchase at the then Conversion Price, and the denominator of which shall be the
sum of the number of shares of common stock issued and outstanding immediately
prior to the Dilutive Issuance plus the number of shares of common stock so
issued or issuable in connection with the Dilutive Issuance. Notwithstanding the
foregoing, no adjustment will be made under this Section 7(b) in respect of an
Exempt Issuance (as defined in Section 1 of the Series A Certificate). If the
Company enters into a Variable Rate Transaction (as defined in Section 4.12(b)
of the Purchase Agreement), despite the prohibition set forth in the Purchase
Agreement, the Company shall be deemed to have issued common stock or Common
Stock Equivalents at the lowest possible conversion price at which such
securities may be converted or exercised. The Company shall notify the holders
in writing, no later than the business day following the issuance of any common
stock or Common Stock Equivalents subject to this Section 7(b), indicating
therein the applicable issuance price, or applicable reset price, exchange
price, conversion price and other pricing terms.
Adjustment
for Subsequent Rights Offerings
If the
Company, at any time while the Series A Preferred is outstanding, shall issue
rights, options or warrants to all holders of common stock (and not to holders)
entitling them to subscribe for or purchase shares of common stock at a price
per share that is lower than the VWAP (defined in Section 1 of the Series A
Certificate) on the record date referenced below, then the Conversion Price
shall be multiplied by a fraction of which the denominator shall be the number
of shares of the common stock outstanding on the date of issuance of such rights
or warrants plus the number of additional shares of common stock offered for
subscription or purchase, and of which the numerator shall be the number of
shares of the common stock outstanding on the date of issuance of such rights or
warrants plus the number of shares which the aggregate offering price of the
total number of shares so offered (assuming delivery to the Company in full of
all consideration payable upon exercise of such rights, options or warrants)
would purchase at such VWAP. Such adjustment shall be made whenever such rights
or warrants are issued, and shall become effective immediately after the record
date for the determination of stockholders entitled to receive such rights,
options or warrants.
Adjustment
for Pro Rata Distributions
If the
Company, at any time while the Series A Preferred is outstanding, distributes to
all holders of common stock (and not to holders) evidences of its indebtedness
or assets (including cash and cash dividends) or rights or warrants to subscribe
for or purchase any security (other than common stock, which shall be subject to
Section 7(b)), then in each such case the Conversion Price shall be adjusted by
multiplying such Conversion Price in effect immediately prior to the record date
fixed for determination of stockholders entitled to receive such distribution by
a fraction of which the denominator shall be the VWAP determined as of the
record date mentioned above, and of which the numerator shall be such VWAP on
such record date less the then fair market value at such record date of the
portion of such assets, evidence of indebtedness or rights or warrants so
distributed applicable to one outstanding share of the common stock as
determined by the board of directors of the Company in good faith. In either
case the adjustments shall be described in a statement delivered to the holders
describing the portion of assets or evidences of indebtedness so distributed or
such subscription rights applicable to one share of common stock. Such
adjustment shall be made whenever any such distribution is made and shall become
effective immediately after the record date mentioned above.
Adjustment
for Fundamental Transactions
If, at
any time while the Series A Preferred is outstanding, (A) the Company effects
any merger or consolidation of the Company with or into another person, (B) the
Company effects any sale of all or substantially all of its assets in one
transaction or a series of related transactions, (C) any tender offer or
exchange offer (whether by the Company or another person) is completed pursuant
to which holders of common stock are permitted to tender or exchange their
shares for other securities, cash or property, or (D) the Company effects any
reclassification of the common stock or any compulsory share exchange pursuant
to which the common stock is effectively converted into or exchanged for other
securities, cash or property (in any such case, a “Fundamental Transaction”),
then, upon any subsequent conversion of Series A Preferred, the holders shall
have the right to receive, for each Conversion Share (as defined in Section 1 of
the Series A Certificate) that would have been issuable upon such conversion
immediately prior to the occurrence of such Fundamental Transaction, the same
kind and amount of securities, cash or property as it would have been entitled
to receive upon the occurrence of such Fundamental Transaction if it had been,
immediately prior to such Fundamental Transaction, the holder of one share of
common stock (the “Alternate Consideration”). For purposes of any such
conversion, the determination of the Conversion Price shall be appropriately
adjusted to apply to such Alternate Consideration based on the amount of
Alternate Consideration issuable in respect of one share of common stock in such
Fundamental Transaction, and the Company shall apportion the Conversion Price
among the Alternate Consideration in a reasonable manner reflecting the relative
value of any different components of the Alternate Consideration. If holders of
common stock are given any choice as to the securities, cash or property to be
received in a Fundamental Transaction, then the holders shall be given the same
choice as to the Alternate Consideration it receives upon any conversion of
Series A Preferred following such Fundamental Transaction. To the extent
necessary to effectuate the foregoing provisions, any successor to the
Corporation or surviving entity in such Fundamental Transaction shall file a new
Certificate of Designation with the same terms and conditions and issue to the
Holders new preferred stock consistent with the foregoing provisions and
evidencing the holders’ right to convert such preferred stock into Alternate
Consideration. The terms of any agreement pursuant to which a Fundamental
Transaction is effected shall include terms requiring any such successor or
surviving entity to comply with the provisions of this Section 7(e) and insuring
that Series A Preferred (or any such replacement security) will be similarly
adjusted upon any subsequent transaction analogous to a Fundamental
Transaction.
Series
A Warrants and Series B Warrants
On
September 9, 2008, we issued to one accredited investor Series A Warrants
and Series B Warrants to purchase 1,750,000 and 1,750,000 shares of our common
stock, respectively (subject to beneficial ownership limitations). The
Series A Warrants and Series B Warrants are exercisable for four years from the
date of issuance at an exercise price of $2.50 and $3.00 per share,
respectively. The Series A Warrants and Series B Warrants contain a cashless
exercise provision that such holders may utilize after one year from issuance of
such warrant if there is no effective registration statement registering, or no
prospectus available for the resale of, the shares underlying the
warrants.
The
Company has the right to call for cancellation each outstanding Series A Warrant
or Series B Warrant upon the occurrence of each of the following:
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(i)
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the
volume weighted average price for each of 30 consecutive trading days (the
“Measurement Period,” which 30 consecutive trading day period shall
not have commenced until after the issue date of the respective warrant)
exceeds 200% of the applicable then-effective exercise
price,
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(ii)
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the
average daily volume for such Measurement Period exceeds 50,000 shares per
trading day (adjusted for any stock splits
etc.),
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(iii)
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a
registration statement is effective for the resale of all of the shares of
Common Stock underlying the applicable warrant,
and
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(iv)
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the
holder of the applicable warrant is not in possession of any information
that constitutes, or might constitute, material non-public information
which was provided by the Company
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Holders
of the Series A Warrants and Series B Warrants are restricted from exercising
such warrants if the number of shares of Common Stock to be issued pursuant to
such exercise would cause the number of shares of Common Stock beneficially
owned by such holder, together with its affiliates, at such time to exceed
9.99% of the then issued and outstanding shares of Common Stock; provided,
however, that such holder may waive this limitation upon 61 days’ notice to the
Company.
Item
5. Interests
of Named Experts and Counsel.
No expert
or counsel named in this prospectus as having prepared or certified any part of
this prospectus or having given an opinion upon the validity of the securities
being registered or upon other legal matters in connection with the registration
or offering of the common stock was employed on a contingency basis or had, or
is to receive, in connection with the offering, a substantial interest, directly
or indirectly, in the registrant or any of its parents or
subsidiaries.
Item
6. Indemnification
of Directors and Officers.
Section 145
of the Delaware General Corporation 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 indemnification for liabilities, including
reimbursement for expenses incurred, arising under the Securities
Act. Pursuant to the provisions of Section 145, a corporation may
indemnify its directors, officers, employees, and agents as
follows:
“(a) A
corporation shall have power to indemnify any person who was or is a party or is
threatened to be made a party 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 the corporation) by reason of the
fact that the person 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, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(b) A
corporation shall have power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that the person 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, partnership,
joint venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by the person in connection with the
defense or settlement of such action or suit if the person acted in good faith
and in a manner the person reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
(c) To
the extent that a present or former director or officer of a corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) and (b) of this section, or in defense
of any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith.
(d) Any
indemnification under subsections (a) and (b) of this section (unless ordered by
a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the present or former
director, officer, employee or agent is proper in the circumstances because the
person has met the applicable standard of conduct set forth in subsections (a)
and (b) of this section. Such determination shall be made, with respect to a
person who is a director or officer at the time of such determination, (1) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, or (3) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (4) by the
stockholders.
(e)
Expenses (including attorneys' fees) incurred by an officer or director in
defending any civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the corporation
as authorized in this section. Such expenses (including attorneys' fees)
incurred by former directors and officers or other employees and agents may be
so paid upon such terms and conditions, if any, as the corporation deems
appropriate.
(f) The
indemnification and advancement of expenses provided by, or granted pursuant to,
the other subsections of this section shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in such person's official capacity and
as to action in another capacity while holding such office.
(g) A
corporation shall have power 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, partnership, joint venture, trust or
other enterprise against any liability asserted against such person and incurred
by such person in any such capacity, or arising out of such person's status as
such, whether or not the corporation would have the power to indemnify such
person against such liability under this section.
(h) For
purposes of this section, references to "the corporation" shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as such
person would have with respect to such constituent corporation if its separate
existence had continued.
(i) For
purposes of this section, references to "other enterprises" shall include
employee benefit plans; references to "fines" shall include any excise taxes
assessed on a person with respect to any employee benefit plan; and references
to "serving at the request of the corporation" shall include any service as a
director, officer, employee or agent of the corporation which imposes duties on,
or involves services by, such director, officer, employee or agent with respect
to an employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
(j) The
indemnification and advancement of expenses provided by, or granted pursuant to,
this section shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
(k) The
Court of Chancery is hereby vested with exclusive jurisdiction to hear and
determine all actions for advancement of expenses or indemnification brought
under this section or under any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees).”
Charter
Provisions and Other Arrangements of the Registrant
We have
adopted the following indemnification provisions in our certificate of
incorporation for our officers and directors:
“The
corporation shall, to the fullest extent permitted by the provisions of 145 of
the General Corporation Law of the State of Delaware, as the same may be amended
and supplemented, indemnify any and all persons whom it shall have power to
indemnify under said section from and against any and all of the expenses,
liabilities, or other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any Bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in such person's official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director, officer, employee, or agent and shall inure to the benefit of the
heirs, executors, and administrators of such person.”
We also
have a $2,000,000 director’s and officer’s liability insurance
policy.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933, as
amended (the “Securities Act”) may be permitted to directors, officers, or
persons controlling the Company pursuant to the foregoing provisions, or
otherwise, we have 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.
Item
7. Exemption
from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
Exhibit
Number
|
|
Description
|
5.1
|
|
Opinion
of Richardson & Patel LLP
|
10.1
|
|
Premier
Power Renewable Energy, Inc. 2008 Equity Incentive Plan
|
23.1
|
|
Consent
of Li & Company, PC
|
23.2
|
|
Consent
of KMJ Corbin & Company LLP
|
23.3
|
|
Consent
of Macias Gini & O’Connell
LLP
|
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. 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 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) do not apply if the Registration Statement is on
Form S-8 and 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 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 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.
(4) That,
for purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan’s annual report pursuant to 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 therein, and the offering of such securities
at that time shall be deemed to be the initial
bona fide
offering
thereof.
(b) 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 Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
(c) 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 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 El Dorado Hills,
California, on January 27, 2009.
|
PREMIER
POWER RENEWABLE ENERGY, INC.
(Registrant)
|
|
|
|
|
|
|
By:
|
/s/
Dean Marks
|
|
|
|
Dean
Marks
|
|
|
|
Chief
Executive Officer and President
|
|
|
|
|
|
POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints Dean Marks and
Teresa Kelley as his true and lawful attorneys-in-fact and agents, each acting
alone, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any or all amendments
(including post-effective amendments) to the Registration Statement, and to sign
any registration statement for the same offering covered by this Registration
Statement that is to be effective upon filing pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and all post-effective amendments thereto,
and to file the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, 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 might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, each acting alone, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
In
accordance with the requirements of the Securities Act of 1933, this
registration statement was signed by the following persons in the capacities and
on the dates stated:
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
|
|
|
/
s/ Dean R. Marks
|
|
Chairman
of the Board, President, and Chief Executive Officer
|
|
January
27, 2009
|
Dean
R. Marks
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Miguel de Anquin
|
|
Chief
Operating Officer, Corporate Secretary, and Director
|
|
January
27, 2009
|
Miguel
de Anquin
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Teresa Kelley
|
|
Chief
Financial Officer
|
|
January
27, 2009
|
Teresa
Kelley
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Kevin Murray
|
|
Director
|
|
January
27, 2009
|
Kevin
Murray
|
|
|
|
|
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