Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OCEAN
POWER TECHNOLOGIES, INC.
(Exact
name of registrant as specified in its charter)
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Delaware |
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22-2535818 |
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(State
or Other Jurisdiction of
Incorporation
or Organization)
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(I.R.S.
Employer
Identification
No.)
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28
Engelhard Drive, Suite B
Monroe
Township, New Jersey
(Address
of Principal Executive Offices) (Zip Code)
2015
Omnibus Incentive Plan
(Full
title of the plan)
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Name,
Address and Telephone
Number
of Agent for Service:
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Copy
of Communications to: |
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Philipp
Stratmann
President
and Chief Executive Officer
28
Engelhard Drive, Suite B
Monroe
Township, New Jersey 08831
(609)
730-0400
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Robert
G. Reedy
Kevin
J. Poli
Porter
Hedges LLP
1000
Main Street, 36th Floor
Houston,
Texas 77002-6336
(713)
226-6600
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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 definitions of “large accelerated filer,”
“accelerated filer,” “smaller reporting company” and “emerging
growth company” in Rule 12b-2 of the Exchange Act. (Check
one):
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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 |
☒ |
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Emerging
growth company |
☐ |
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. ☐
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Ocean
Power Technologies, Inc. (the “Company”) prepared this Registration
Statement in accordance with the requirements of Form S-8 under the
Securities Act of 1933, as amended (the “Securities Act”), to
register an additional 1,250,000shares of our common stock related
to the 2015 Omnibus Incentive Plan, as amended, all of which are
the same class as other securities for which registration
statements on Form S-8, File Nos. 333-208522, 333-214316,
333-224436, 333-232755, 333-252372, and 333-262684 have been
previously filed. The documents containing the information
specified in Part I of this Registration Statement will be sent or
given to participants in the 2015 Omnibus Incentive Plan, as
amended, as specified by Rule 428(b)(1) promulgated under the
Securities Act. Such documents need not be filed with the
Securities and Exchange Commission (the “Commission”), either as
part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 promulgated under the
Securities Act. These documents and the documents incorporated by
reference in this Registration Statement pursuant to Item 3 of
Part II of this Registration Statement, taken together, constitute
a prospectus that meets the requirement of Section 10(a) of
the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents, which have previously been filed by the
Company with the Commission under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), are incorporated herein by
reference:
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The
Company’s Annual Report on Form 10-K for the fiscal year
ended April 30, 2022, filed with the Commission on July 13, 2022
(File No. 001-33417); |
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The
Company’s Quarterly Reports on Form 10-Q for the fiscal quarters
ended July 31, 2022 and October 31, 2022 filed with the
Commission on September 12, 2022 and December 14, 2022,
respectively (File No. 001-33417); |
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The
Company’s Current Reports on Form 8-K and 8-K/A, filed with the
Commission on July 13, 2022, July 19, 2022, September 12, 2022, October 5, 2022, December 14, 2022 and January 17, 2023 (File No.
001-33417) (excluding any information furnished pursuant to Item
2.02 or Item 7.01 of any such Current Report on Form 8-K);
and |
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The
description of our common stock set forth in our registration
statement on Form 8-A filed on April 18, 2007
(File No. 001-33417) and in any and all subsequent amendments and
reports filed for the purpose of updating that
description. |
In
addition, all documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
(excluding any information furnished pursuant to Item 2.02 or Item
7.01 on any Current Report on Form 8-K) prior to the filing of a
post-effective amendment to this Registration Statement 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 in this Registration
Statement and to be part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any
subsequently filed document that also is or is deemed to be
incorporated by reference herein, as the case may be, 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.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Officers and Directors.
Section
102 of the General Corporation Law of the State of Delaware 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 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 corporate law or obtained an
improper personal benefit. The Registrant’s certificate of
incorporation provides that no director of the Registrant shall be
personally liable to it or its stockholders for monetary damages
for any breach of fiduciary duty as director, notwithstanding any
provision of law imposing such liability, except to the extent that
the General Corporation Law of the State of Delaware prohibits the
elimination or limitation of liability of directors for breaches of
fiduciary duty.
Section
145 of the General Corporation Law of the State of Delaware
provides that a corporation has the power to indemnify a director,
officer, employee, or agent of the corporation and certain other
persons serving at the request of the corporation in related
capacities 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 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 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 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 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
Court of Chancery or such other court shall deem proper.
The
Registrant’s certificate of incorporation provides that the
Registrant will indemnify each person who was or is a party or
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than an action by or in
the right of the Registrant) by reason of the fact that he or she
is or was, or has agreed to become, a director or officer of the
Registrant, or is or was serving, or has agreed to serve, at the
Registrant’s request as a director, officer, partner, employee or
trustee of, or in a similar capacity with, another corporation,
partnership, joint venture, trust or other enterprise (all such
persons being referred to as an “Indemnitee”), or by reason of any
action alleged to have been taken or omitted in such capacity,
against all expenses (including attorneys’ fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred in
connection with such action, suit or proceeding and any appeal
therefrom, if such Indemnitee acted in good faith and in a manner
he or she reasonably believed to be in, or not opposed to, the
Registrant’s best interests, and, with respect to any criminal
action or proceeding, he or she had no reasonable cause to believe
his or her conduct was unlawful. The Registrant’s certificate of
incorporation provides that the Registrant will indemnify any
Indemnitee who was or is a party to an action or suit by or in the
right of the Registrant to procure a judgment in the Registrant’s
favor by reason of the fact that the Indemnitee is or was, or has
agreed to become, a director or officer of the Registrant, or is or
was serving, or has agreed to serve, at the Registrant’s request as
a director, officer, partner, employee or trustee or, or in a
similar capacity with, another corporation, partnership, joint
venture, trust or other enterprise, or by reason of any action
alleged to have been taken or omitted in such capacity, against all
expenses (including attorneys’ fees) and, to the extent permitted
by law, amounts paid in settlement actually and reasonably incurred
in connection with such action, suit or proceeding, and any appeal
therefrom, if the Indemnitee 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 Registrant, except that 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 Registrant,
unless a court determines that, despite such adjudication but in
view of all of the circumstances, he or she is entitled to
indemnification of such expenses. Notwithstanding the foregoing, to
the extent that any Indemnitee has been successful, on the merits
or otherwise, he or she will be indemnified by the Registrant
against all expenses (including attorneys’ fees) actually and
reasonably incurred in connection therewith. Expenses must be
advanced to an Indemnitee under certain circumstances.
The
Registrant maintains a general liability insurance policy that
covers certain liabilities of the Registrant’s directors and
officers arising out of claims based on acts or omissions in their
capacities as directors or officers.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
*
Filed herewith.
Item
9. Undertakings.
(a)
The Company 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; and
(iii)
To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement.
provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or
furnished to the Commission by the Company 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.
(b)
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company’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 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.
(c)
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company 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 Company of
expenses incurred or paid by a director, officer or controlling
person of the Company 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
Company 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, 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 Monroe Township,
State of New Jersey, on this 20th day of January,
2023.
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OCEAN
POWER TECHNOLOGIES, INC. |
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By: |
/s/
Philipp Stratmann |
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Philipp
Stratmann |
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President
and Chief Executive Officer |
POWER OF ATTORNEY
We
the undersigned officers and directors of Ocean Power Technologies,
Inc., hereby, severally constitute and appoint Philipp Stratmann
and Robert P. Powers, each of them singly, our true and lawful
attorneys with full power to them and each of them singly, to sign
for us and in our names in the capacities indicated below, the
registration statement on Form S-8 filed herewith and any and all
pre-effective and post-effective amendments to said registration
statement and any subsequent registration statement for the same
offering which may be filed under Rule 462(b) and generally to do
all such things in our names and on our behalf in our capacities as
officers and directors to enable Ocean Power Technologies, Inc. to
comply with the provisions of the Securities Act of 1933, and all
requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by
our said attorneys, or any of them, to said registration statement
and any and all amendments thereto or to any subsequent
registration statement for the same offering which may be filed
under Rule 462(b).
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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Signature |
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Title |
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Date |
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President,
Chief Executive Officer |
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/s/
Philipp Stratmann |
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and
Director (Principal Executive Officer) |
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January
20, 2023 |
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Philipp
Stratmann |
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/s/
Robert P. Powers |
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Senior
Vice President and Chief Financial Officer |
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January
20, 2023 |
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Robert
P. Powers |
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(Principal
Financial Officer) |
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/s/
Joseph DiPietro |
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Controller
and Treasurer |
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January
20, 2023 |
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Joseph
DiPietro |
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(Principal
Accounting Officer) |
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/s/
Terence J. Cryan |
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Chairman
of the Board and Director |
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January
20, 2023 |
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Terence
J. Cryan |
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/s/
Clyde W. Hewlett |
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Director |
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January
20, 2023 |
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Clyde
W. Hewlett |
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/s/
Diana G. Purcel |
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Director |
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January
20, 2023 |
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Diana
G. Purcel |
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/s/
Peter E. Slaiby |
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Director |
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January
20, 2023 |
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Peter
E. Slaiby |
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/s/
Natalie Lorenz-Anderson |
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Director |
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January
20, 2023 |
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Natalie
Lorenz-Anderson |
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