Securities Registration: Employee Benefit Plan (s-8)
December 28 2017 - 9:18AM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on December
28, 2017
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Registration No. 333-
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UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
HIGHPOWER INTERNATIONAL, INC.
(Exact name of registrant as specified in
its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
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20-4062622
(I.R.S. Employer
Identification No.)
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Building A1, Luoshan Industrial Zone,
Shanxia, Pinghu, Longgang, Shenzhen, Guangdong, 518111, China
(Address of principal executive offices)
(86) 755-89686238
(Registrant’s telephone number, including
area code)
Highpower International, Inc. 2017 Omnibus
Incentive Plan
(Full Title of the plans)
Corporation Service Company
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Copy to:
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2711 Centerville Road
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Katherine J. Blair, Esq.
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Suite 400
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Manatt, Phelps & Phillips, LLP
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Wilmington, DE 19808
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11355 West Olympic Boulevard
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800-222-2122
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Los Angeles, CA 90064
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(Name, address and telephone number of agent
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Telephone: (310) 312-4252
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for service)
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Facsimile: (310) 312-4224
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large
accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company”
in Rule 12b-2 of the Exchange Act:
Large accelerated filer
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¨
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Accelerated filer
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¨
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Non-accelerated filer
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¨
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Smaller reporting company
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x
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(Do not check if a smaller reporting
company)
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Emerging growth company
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¨
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If an emerging growth company, indicate by check mark
if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
¨
CALCULATION OF REGISTRATION FEE
Title of Securities
to be Registered
(1)
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Amount to be
Registered (2)
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Proposed
Maximum
Offering
Price per
Share
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Proposed Maximum
Aggregate Offering
Price
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Amount of
Registration Fee
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Common stock, $0.0001 par value per share
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2,250,000 shares
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$3.85
(3)
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$8,662,500
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$1,078.48
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(1) Includes certain preferred stock purchase rights associated
with the shares of Common Stock pursuant to the Rights Agreement, dated September 12, 2017.
(2) This Registration Statement also covers an indeterminate
number of shares of Common Stock which may be issuable by reason of stock splits, stock dividends or similar transactions pursuant
to Rule 416 of the Securities Act of 1933, as amended.
(3) Estimated in accordance with Rule 457(c) and (h) under the
Securities Act of 1933, as amended, solely for the purpose of calculating the total registration fee. Computation is based upon
the average of the high and low prices of the Registrant’s Common Stock as reported on the Nasdaq Global Market on December
26, 2017.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
As permitted by the rules of the Securities and Exchange Commission
(the “Commission”), this registration statement omits the information specified in Part I of Form S-8. The documents
containing the information specified in Part I of this registration statement will be sent or given to eligible employees as specified
in Rule 428(b)(1) promulgated under the Securities Act of 1933, as amended (the “Securities Act”). Such documents are
not being filed with the Commission either as part of this registration statement or as prospectuses or prospectus supplements
pursuant to Rule 424 promulgated under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
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Item 3.
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Incorporation of Documents by Reference.
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The following documents filed by the Registrant with the Securities
and Exchange Commission, or SEC, (File No. 001-34098) are incorporated herein by reference:
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·
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The Registrant’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2016, filed on March 28, 2017;
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·
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The Registrant’s Quarterly Reports on Form 10-Q for the quarter
ended March 31, 2017, as filed on May 10, 2017, the quarter ended June 30, 2017, as filed on August 10, 2017, and, the quarter
ended September 30, 2017, as filed on November 14, 2017;
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·
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The Registrant’s Current Reports on Form 8-K (other than information
furnished pursuant to Item 2.02 or Item 7.01 thereof) filed on February 15, 2017, June 14, 2017, June 16, 2017, September 7, 2017,
September 13, 2017, October 19, 2017, December 7, 2017, and December 15, 2017;
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·
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The description of the Registrant’s Common Stock contained in
the Registrant’s registration statement on Form 8-A, including all amendments and reports filed for the purpose of updating
such description, filed pursuant to Section 12(b) of the Exchange Act (File No. 001-34098); and
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·
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The description of the Registrant’s preferred stock purchase
rights contained in its registration statement on Form 8-A, including all amendments and reports filed for the purpose of updating
such description, filed pursuant to Section 12(b) of the Exchange Act initially on September 13, 2017 (File No. 001-34098).
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The Registrant incorporates by reference the documents listed
above and any documents subsequently filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, (except for information furnished under Item 2.02 or Item 7.01 of Form 8-K, which is not deemed filed and not incorporated
by reference herein) prior to the filing of a post-effective amendment, which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in the Registration
Statement and to be part thereof 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 subsequently filed document which also is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration Statement.
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Item 4.
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Description of Securities.
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Not applicable.
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Item 5.
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Interests of Named Experts and Counsel.
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Not applicable.
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Item 6.
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Indemnification of Directors and Officers.
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Section 102 of the Delaware General Corporation Law permits
a corporation to eliminate the personal liability of directors of a corporation to the corporation or its stockholders for monetary
damages for a breach of fiduciary duty as a director, except where the director breached his or her duty of loyalty, failed to
act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved
a stock repurchase in violation of Delaware corporation law or obtained an improper personal benefit. The Registrant’s certificate
of incorporation provides that, to the fullest extent permitted by Delaware General Corporation Law, its directors shall not be
liable for monetary damages for breach of the directors’ fiduciary duty as a director. This provision in the certificate
of incorporation does not eliminate the duty of care, and in appropriate circumstances equitable remedies such as injunctive or
other forms of nonmonetary relief will remain available under Delaware law. In addition, each director will continue to be subject
to liability for breach of the director’s duty of loyalty to the Registrant or its stockholders, for acts or omissions not
in good faith or involving intentional misconduct or knowing violations of the law, for actions leading to improper personal benefit
to the director, and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware
law. The provision also does not affect a director’s responsibilities under any other law, such as the federal securities
laws.
Section 145 of the Delaware General Corporation Law provides
that a corporation has the 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, 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 settlements actually and reasonably incurred
by the person in connection with an action, suit or proceeding to which he or she is or is threatened to be made a party by reason
of such position, if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his or her conduct
was unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made
with respect to 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 Delaware Court of Chancery or other adjudicating court determines that, despite the adjudication
of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for
such expenses which the Delaware Court of Chancery or such other court shall deem proper.
The Registrant has been advised that in
the opinion of the Securities and Exchange Commission, insofar as indemnification for liabilities arising under the Securities
Act may be permitted to the Registrant’s directors, officers and controlling persons pursuant to the foregoing provisions,
or otherwise, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
In the event a claim for indemnification against such liabilities (other than the Registrant’s payment of expenses incurred
or paid by its director, officer or controlling person 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 of whether such indemnification by the Registrant is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
The Registrant may enter into indemnification
agreements with each of its directors and officers that are, in some cases, broader than the specific indemnification provisions
permitted by Delaware law, and that may provide additional procedural protection. The Registrant has not entered into any indemnification
agreements with its directors or officers, but may choose to do so in the future. Such indemnification agreements may require the
Registrant, among other things, to:
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·
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indemnify
officers and directors against certain liabilities that may arise because of their status as officers or directors;
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·
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advance
expenses, as incurred, to officers and directors in connection with a legal proceeding, subject to limited exceptions; or
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·
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obtain
directors’ and officers’ insurance.
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The Company maintains
directors and officers liability insurance.
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Item 7.
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Exemption from Registration Claimed.
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Not applicable.
The Registrant hereby undertakes:
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(a) (1)
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To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration Statement:
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(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 this 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 this 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 greater than a 20% 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 (a)(1)(i) and
(a)(1)(ii) herein do not apply if the information required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in this Registration Statement;
(2) That,
for the purposes 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 bonafide offering thereof; and
(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.
(b) The
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 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 this 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.
(h) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to the 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 final adjudication of such issue.
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 Irvine, State
of California, on this 28th day of December, 2017.
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HIGHPOWER INTERNATIONAL, INC.
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By
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/s/ Shengbin (Sunny) Pan
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By:
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Shengbin (Sunny) Pan
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Chief Financial Officer
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POWER OF ATTORNEY
We, the undersigned officers and directors of Highpower International,
Inc., do hereby constitute and appoint Dang Yu Pan and Shengbin (Sunny) Pan, and each of them, as his true and lawful attorneys-in-fact
and agents, with full power of substitution for him in any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his 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 and on the dates indicated.
Name and Signature
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Title
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Date
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/s/ Dang Yu Pan
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Chairman of the Board, Chief Executive Officer
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December 28, 2017
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Dang Yu Pan
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and Director (Principal Executive Officer)
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/s/ Shengbin (Sunny) Pan
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Chief Financial Officer
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December 28, 2017
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Shengbin (Sunny) Pan
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(Principal Financial and Accounting Officer)
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/s/ T. Joseph Fisher III
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Director
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December 28, 2017
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T. Joseph Fisher III
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/s/ Ping Li
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Director
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December 28, 2017
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Ping Li
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/s/ Wen Liang Li
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Director
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December 28, 2017
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Wen Liang Li
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/s/ Jie Wang
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Director
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December 28, 2017
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Jie Wang
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