As filed with the Securities and Exchange Commission on January 31, 2014
Registration No. 33- ________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
SOLAR3D, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 01-05922991
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(State or Incorporation) (I.R.S. Employer Identification No.)
26 West Mission Avenue
Santa Barbara, California 93101
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(Address of principal executive offices and zip codes)
SOLAR3D, INC.
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(Full title of the plan)
Copy To:
James B. Nelson, Chief Executive Officer Mark J. Richardson, Esq.
Solar3D, Inc. Richardson & Associates
26 West Mission Avenue 1453 Third Street Promenade,
Santa Barbara, California 93101 Suite 315
(805) 690-9000 Santa Monica, California 90401
(Name, address and telephone number of (310) 393-9992
agent for service)
CALCULATION OF REGISTRATION FEE
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Title of Each Class Maximum Maximum Amount of
of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered Per Share Offering Price Fee
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Common Stock, par value $0.001 per 4,000,000 shares(1) $0.12(2) $480,000 $61.82
share, issuable pursuant to a
restricted stock agreement
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Total 4,000,000 shares $480,000 $61.82
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(1) These are performance shares that are eligible for vesting and issuance. To
date, none of these shares have been issued.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and (h) and based upon the last sale price of the
Company's Common Stock on January 23, 2014 as reported on the OTC -QB
Market.
This Form S-8 consists of 23 pages, including exhibits.
The index to exhibits is set forth on page 8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Solar3D, Inc. ("Solar3D," "we," the "Company" or "Registrant")
incorporates by reference in this registration statement the following
documents:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 2012.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2013.
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2013.
(d) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 2013.
(e) The Registrant's Definitive 14C Information Statement filed by
the Company with the Securities and Exchange Commission on
April 23, 2013.
(f) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since January 1, 2011.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the date of the
filing hereof and 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 this registration statement and to be a part hereof from the date
of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
GENERAL. The authorized capital stock of the Company consists of
1,000,000,000 shares of common stock, par value $0.001 per share, and 5,000,000
shares of preferred stock, par value $0.001 per share. On January 23, 2014, the
Company had 222,125,323 shares of common stock issued and outstanding and no
shares of preferred stock issued and outstanding,
COMMON STOCK. All outstanding shares of common stock are, and the
shares to be issued as contemplated herein will be, fully paid and
nonassessable. As a class, holders of the common stock are entitled to one vote
per share in all matters to be voted upon by the stockholders. Holders of common
stock are not entitled to cumulative voting rights with respect to the election
of directors. Holders of common stock are entitled to receive such dividends
when and as declared by the Board of Directors out of the surplus or net profits
of the Company legally available therefore, equally, on a share for share basis.
The Company does not anticipate paying dividends in the near future. In the
event of a liquidation, dissolution or winding-up of the Company, the holders of
common stock are entitled to share equally, on a share for share basis, in all
assets remaining after payment of liabilities, subject to the prior distribution
rights of any other classes or series of capital stock then outstanding. The
common stock has no preemptive rights and is neither redeemable nor convertible,
and there are no sinking fund provisions. As of January 23, 2014, the Company's
222,125,323 shares of common stock outstanding were held by approximately 120
stockholders of record, not including shares held in securities brokerage
accounts.
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PREFERRED STOCK. The Company is authorized to issue 5,000,000 shares of
preferred stock, par value $0.001 per share, having such rights, preferences and
privileges, and issued in such series, as are determined by the Company's board
of directors. As of January 23, 2014, no shares of preferred stock are issued
and outstanding.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the issuance of the shares of common stock covered by
this registration statement will be passed upon for the Company by Richardson &
Associates, counsel to the Company, 1453 Third Street Promenade, Suite 315,
Santa Monica, California, 90401. Mark J. Richardson owns 2,000,000 stock options
to purchase 2,000,000 shares of the Company's common stock and 2,304,000 shares
of the Company's common stock, none of which are being registered pursuant to
this registration statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Delaware General Corporation Law and Solar3D's bylaws, Solar3D's
directors will have no personal liability to Solar3D's stockholders for monetary
damages incurred as the result of the breach or alleged breach by a director of
his "duty of care." This provision does not apply to the directors' (i) acts or
omissions that involve intentional misconduct or a knowing and culpable
violation of law, (ii) acts or omissions that a director believes to be contrary
to the best interests of the corporation or its shareholders or that involve the
absence of good faith on the part of the director, (iii) approval of any
transaction from which a director derives an improper personal benefit, (iv)
acts or omissions that show a reckless disregard for the director's duty to the
corporation or its shareholders in circumstances in which the director was
aware, or should have been aware, in the ordinary course of performing a
director's duties, of a risk of serious injury to the corporation or its
shareholders, (v) acts or omissions that constituted an unexcused pattern of
inattention that amounts to an abdication of the director's duty to the
corporation or its shareholders, or (vi) approval of an unlawful dividend,
distribution, stock repurchase or redemption. This provision would generally
absolve directors of personal liability for negligence in the performance of
duties, including gross negligence.
The effect of this provision in Solar3D's bylaws is to eliminate the
rights of Solar3D's stockholders (through stockholder's derivative suits on
behalf of Solar3D) to recover monetary damages against a director for breach of
his fiduciary duty of care as a director (including breaches resulting from
negligent or grossly negligent behavior) except in the situations described in
clauses (i) through (vi) above. This provision does not limit nor eliminate the
rights of Solar3D or any stockholder to seek non-monetary relief such as an
injunction or rescission in the event of a breach of a director's duty of care.
In addition, Solar3D's bylaws provide that if Delaware law is amended to
authorize the future elimination or limitation of the liability of a director,
then the liability of the directors will be eliminated or limited to the fullest
extent permitted by the law, as amended. Delaware General Corporation Law grants
corporations the right to indemnify their directors, officers, employees and
agents in accordance with applicable law. These provisions will not alter the
liability of the directors under federal securities laws.
Furthermore, management plans to enter into agreements to indemnify
Solar3D's directors and officers, in addition to the indemnification provided
for in Solar3D's bylaws. These agreements, among other things, will indemnify
Solar3D's directors and officers for certain expenses (including attorneys'
fees), judgments, fines, and settlement amounts incurred by any such person in
any action or proceeding, including any action by or in the right of Solar3D,
arising out of such person's services as a director or officer of Solar3D, any
subsidiary of Solar3D or any other company or enterprise to which the person
provides services at the request of Solar3D. We believe that these provisions
and agreements are necessary to attract and retain qualified directors and
officers. In the future, Solar3D may also purchase an insurance policy to
protect our officers and directors from certain liabilities, including
liabilities against which we cannot directly indemnify our directors and
officers.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling Solar3D
pursuant to the foregoing provisions, Solar3D has been informed that in the
opinion of the SEC, such indemnification is against public policy as expressed
in the Act and is therefore unenforceable.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The shares of common stock which will be issued pursuant to this
registration statement will be issued pursuant to Rule 506 of Regulation D
promulgated under Section 4(2) of the Securities Act of 1933, as amended.
ITEM 8. EXHIBITS.
3.1 Certificate of Incorporation of the Registrant (1)
3.2 Amendments to Certificate of Incorporation of the Registrant
(1)(2)
3.3 Bylaws of the Registrant (1)
5.1 Opinion of Richardson & Associates as to the legality of the
securities being registered
23.1 Consent of Richardson & Associates
23.2 Consent of HJ Associates & Consultants, LLP, Independent
Registered Public Accounting Firm
24.1 Power of Attorney (contained on page 5 hereof)
99.1 Re-offer Prospectus, dated January 31, 2014
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(1) Incorporated by reference from the exhibits included with the Company's
Registration Statement on Form SB-2 file with the SEC dated August 1,
2005.
(2) Incorporated by reference from the exhibits included with the
Definitive 14C Information Statement filed by the Company with the SEC
on April 23, 2013.
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;
(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 hereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in this Registration
Statement; and
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in this Registration
Statement or any material change to such
information in this Registration Statement;
Provided, however, that paragraphs (i) and (ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in this 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
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herein, 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 undersigned Registrant hereby undertakes that, for the purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference into this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered herein 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 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. 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 of whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the finial adjudication of such issue.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James B. Nelson, his true and lawful
attorney-in-fact and agent 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 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 attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming that said attorney-in-fact and agent or the substitute or substitutes
of him, may lawfully do or cause to be done by virtue hereof.
[SIGNATURES ON FOLLOWING PAGE]
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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 his registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Santa Barbara, State of California on the 31st day of
January 2014.
SOLAR3D, INC.
By: /s/ James B. Nelson
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James B. Nelson, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ James B. Nelson Chairman, Chief Executive January 31, 2014
-------------------------- Officer (Principal Executive
James B. Nelson Officer), President, Chief
Financial Officer (Principal
Accounting Officer), and
Secretary
/s/ Mark J. Richardson Director January 31, 2014
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Mark J. Richardson
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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 31, 2014
REGISTRATION NO. 33-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SOLAR3D, INC.
EXHIBIT VOLUME
TO THE
REGISTRATION STATEMENT
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INDEX TO THE EXHIBIT VOLUME TO
REGISTRATION STATEMENT ON FORM S-8
3.1 Certificate of Incorporation of the Registrant (1)
3.2 Amendments to Certificate of Incorporation of the Registrant
(1) (2)
3.3 Bylaws of the Registrant (1)
5.1 Opinion of Richardson & Associates as to the legality of the
securities being registered
23.1 Consent of Richardson & Associates
23.2 Consent of HJ Associates & Consultants, LLP, Independent
Registered Public Accounting Firm
24.1 Power of Attorney (contained on page 5 hereof)
99.1 Re-offer Prospectus, dated January 31, 2014
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(1) Incorporated by reference from the exhibits included with the Company's
Registration Statement on Form SB-2 file with the SEC dated August 1,
2005.
(2) Incorporated by reference from the exhibits included with the
Definitive 14C Information Statement filed by the Company with the SEC
on April 23, 2013.