As filed with the Securities and Exchange Commission on June 29, 2015 

Registration No. 333-          

 

 

UNITED STATES 

SECURITIES AND EXCHANGE COMMISSION 

Washington, D.C. 20549

 

 

 

FORM S-8

 

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

 

 

TerraForm Power, Inc. 

(Exact name of registrant as specified in its charter)

 

Delaware 

(State or other jurisdiction of 

incorporation or organization)

46-4780940 

(I.R.S. Employer 

Identification No.) 

     

7550 Wisconsin Avenue, 9th Floor
Bethesda, Maryland, 20814  

(Address of Principal Executive Offices)

20814 

(Zip Code) 

  

 

 

2014 Second amended and restated long-term incentive plan 

(Full title of the plan)

 

 

 

Sebastian Deschler, Esq.  

Senior Vice President, General Counsel and Secretary  

TerraForm Power, Inc.  

7550 Wisconsin Avenue, 9th Floor  

Bethesda, Maryland 20814  

(240) 762-7700  

(Name, address and telephone number, including area code, of agent for service)

 

 

 

Copy to:

 

Andrea L. Nicolas, Esq.  
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square  
New York, New York 10036-6522  
(212) 735-3000  

 

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 the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. 

 

Large accelerated filer £ Accelerated filer £
Non−accelerated filer T (Do not check if a smaller reporting company) Smaller reporting company £

 

CALCULATION OF REGISTRATION FEE

 

Title of securities to be registered

Amount to be 

registered(1) 

Proposed maximum 

offering price 

per share 

Proposed maximum 

aggregate 

offering price 

Amount of 

registration
fee(4) 

Class A common stock, par value $0.01 per share 150,000 $29.31(2) $4,396,500 $511
Class A common stock, par value $0.01 per share 4,541,021 $39.00(3) $177,099,825 $20,579

 

(1)This registration statement covers the following shares of class A common stock, par value $0.01 per share (“Class A Common Stock”), of TerraForm Power, Inc. (the “Company”): (i) 150,000 shares of Class A Common Stock issuable upon the exercise of options granted prior to the date hereof under the Company’s 2014 Second Amended and Restated Long-Term Incentive Plan, as amended (the “2014 Plan”), (ii) 4,541,021 shares of Class A Common Stock that may be issued under the 2014 Plan and (iii) pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), an indeterminate number of additional shares that may become issuable under the terms of the 2014 Plan by reason of any share split, share dividend, recapitalization or other similar transaction effected without the Company’s receipt of consideration which results in an increase in the number of the outstanding shares of Class A Common Stock.

 

(2)Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act, on the basis of $29.31 per share, the weighted average exercise price of the 150,000 shares of Class A Common Stock issuable upon exercise of outstanding options under the 2014 Plan as of the date of this registration statement.

 

(3)Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) and (c) under the Securities Act, based on the average of the high and low sales prices of the Class A Common Stock on the Nasdaq Global Market on June 26, 2015.

 

(4)Calculated pursuant to Section 6(b) of the Securities Act by multiplying the proposed maximum aggregate offering price by 0.0001162.
 
 

EXPLANATORY NOTE

 

This registration statement registers shares of class A common stock, par value $0.01 per share (“Class A Common Stock”), of TerraForm Power, Inc. (the “Company”) that may be issuable upon the exercise of options granted prior to the date hereof and that may be issued and sold under the Company's 2014 Second Amended and Restated Long-Term Incentive Plan, as amended (the “2014 Plan.”)

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

Item 1. Plan Information.*

 

Item 2. Registrant Information and Employee Plan Annual Information.*

 

* The documents containing the information specified in Part I of Form S-8 will be sent or given to participants in the Plans as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). Such documents need not be 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.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents previously filed with the SEC are incorporated by reference in this registration statement:

 

(a) The Company’s annual report on Form 10-K for the year ended December 31, 2014, dated March 13, 2015, filed with the SEC (Registration No. 001-36542);

 

(b) The Company’s quarterly report on Form 10-Q for the quarter ended March 31, 2015, dated May 7, 2015, filed with the SEC (Registration No. 001-36542);

 

(c) The Company’s current reports on Form 8-K, filed with the SEC on February 3, 2015, March 30, 2015, April 1, 2015 (to the extent filed), May 6, 2015, May 8, 2015, June 2, 2015 and June 12, 2015; and

 

(d) The description of Class A Common Stock contained in the registration statement on Form 8-A, dated July 15, 2014, filed with the SEC by the Company to register such securities under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description.

 

All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this registration statement 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 part hereof from the date of filing of such documents with the SEC.

 

Any statement contained in a document incorporated or deemed to be incorporated by reference in this registration statement shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained in this registration statement, or in any other subsequently filed document that also is or is deemed to be incorporated by reference in this registration statement, modifies or supersedes such prior statement. Any statement contained in this registration statement shall be deemed to be modified or superseded to the extent that a statement contained in a subsequently filed document that is or is deemed to be incorporated by reference in this registration statement modifies or supersedes such prior statement. Any 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 Directors and Officers.

 

Set forth below is a description of certain provisions of the Company’s amended and restated certificate of incorporation, amended and restated bylaws and Delaware law as such provisions relate to the Company’s directors and officers. This description is intended only as a summary and is qualified in its entirety by reference to the Company’s amended and restated certificate of incorporation, amended and restated bylaws and Delaware law.

 

Section 102 of the Delaware General Corporation Law, as amended (the “DGCL”), allows a corporation to eliminate the personal liability of directors to a corporation or its stockholders for monetary damages for a breach of a 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 or redemption in violation of Delaware corporate law or obtained an improper personal benefit.

 

Section 145 of the DGCL provides, among other things, that a corporation may 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 (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 corporation’s request 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 the action, suit or proceeding. The power to indemnify applies if (i) such person is successful on the merits or otherwise in defense of any action, suit or proceeding or (ii) 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 with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The power to indemnify applies to actions brought by or in the right of the corporation as well, but only to the extent of defense expenses (including attorneys’ fees but excluding amounts paid in settlement) actually and reasonably incurred and not to any satisfaction of judgment or settlement of the claim itself, and with the further limitation that in such actions no indemnification shall be made in the event of any adjudication of negligence or misconduct in the performance of his duties to the corporation, unless a court believes that in light of all the circumstances indemnification should apply.

 

Section 174 of the DGCL provides, among other things, that a director who willfully and negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption may be held liable for such actions. A director who was either absent when the unlawful actions were approved or dissented at the time, may avoid liability by causing his or her dissent to such actions to be entered in the books containing the minutes of the meetings of the board of directors at the time the action occurred or immediately after the absent director receives notice of the unlawful acts.

 

The Company’s amended and restated certificate of incorporation states that no director shall be personally liable to the Company or any of its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as it exists or may be amended. A director is also not exempt from liability for any transaction from which he or she derived an improper personal benefit, or for violations of Section 174 of the DGCL. To the maximum extent permitted under Section 145 of the DGCL, the Company’s amended and restated certificate of incorporation authorizes the Company to indemnify any and all persons whom it has the power to indemnify under the law.

 

 
 

The Company’s amended and restated bylaws provide that the Company will indemnify, to the fullest extent permitted by the DGCL, each person who was or is made a party or is threatened to be made a party in any legal proceeding by reason of the fact that he or she is or was a director or officer of the Company or is or was a director or officer of the Company serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. However, such indemnification is permitted only if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. Indemnification is authorized on a case-by-case basis by (1) the Company’s board of directors by a majority vote of disinterested directors, (2) a committee of the disinterested directors, (3) independent legal counsel in a written opinion if (1) and (2) are not available, or if disinterested directors so direct, or (4) the stockholders. Indemnification of former directors or officers shall be determined by any person authorized to act on the matter on the Company’s behalf. Expenses incurred by a director or officer in defending against such legal proceedings are payable before the final disposition of the action, provided that the director or officer undertakes to repay the Company if it is later determined that he or she is not entitled to indemnification.

 

The Company has entered into separate indemnification agreements with its directors and executive officers. Each indemnification agreement provides, among other things, for indemnification to the fullest extent permitted by law and the Company’s amended and restated certificate of incorporation and amended and restated bylaws against any and all expenses, judgments, fines, penalties and amounts paid in settlement of any claim. The indemnification agreements provide for the advancement or payment of all expenses to the indemnitee and for reimbursement to the Company if it is found that such indemnitee is not entitled to such indemnification under applicable law and the Company’s amended and restated certificate of incorporation and amended and restated bylaws.

 

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company has been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. The Company's maintains directors’ and officers’ liability insurance for its officers and directors.

 

The Company maintains industry standard policies of insurance under which coverage is provided to its directors and officers against legal liability for loss which is not indemnified arising from claims made by reason of breach of duty or other wrongful act while acting in their capacity as directors and officers of the registrant.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

The list of exhibits is set forth under “Exhibit Index” at the end of this registration statement and is incorporated herein by reference.

 

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 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) of this section 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 undersigned 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.

 

(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the undersigned registrant’s annual report pursuant to section 13(a) or section 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.

 

(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the undersigned registrant pursuant to the foregoing provisions, or otherwise, the undersigned 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 undersigned registrant of expenses incurred or paid by a director, officer or controlling person of the undersigned 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 undersigned 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 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 the City of Bethesda, State of Maryland, on June 29, 2015.

 

 

  TERRAFORM POWER, INC.
       
  By: /s/  Carlos Domenech Zornoza
  Name: Carlos Domenech Zornoza  
  Title: Chief Executive Officer

 

POWER OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints Ahmad Chatila and Carlos Domenech Zornoza, and each of them, his true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him and in his name, place and stead, 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 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, 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 below by the following persons in the capacities and on the dates indicated below.

 

Signature   Title   Date
     
/s/ Carlos Domenech Zornoza Chief Executive Officer and Director 
(Principal Executive Officer)		 June 29, 2015
Carlos Domenech Zornoza  
   
/s/ Alejandro “Alex” Hernandez Chief Financial Officer 
(Principal Financial Officer) 		 June 29, 2015
Alejandro “Alex” Hernandez  
   
/s/ Ahmad Chatila Director June 29, 2015
Ahmad Chatila  
   
/s/ Brian Wuebbels Director June 29, 2015
Brian Wuebbels  
   
/s/ Francisco “Pancho” Perez-Gundin Director June 29, 2015
Francisco “Pancho” Perez-Gundin  
   
/s/ Steven Tesoriere Director June 29, 2015
Steven Tesoriere  
   
/s/ Martin Truong Director June 29, 2015
Martin Truong  
   
/s/ Mark Lerdal Director June 29, 2015
Mark Lerdal  
   
/s/ Mark Florian Director June 29, 2015
Mark Florian  
   
/s/ Hanif “Wally” Dahya Director June 29, 2015
Hanif “Wally” Dahya  

 

 

 
 

INDEX OF EXHIBITS

 

 

Exhibit
No.		   Description
4.1   Amended and Restated Certificate of Incorporation of TerraForm Power, Inc. (incorporated by reference  to Exhibit 3.1 to the Current Report on Form 8-K, filed with the SEC on July 25, 2014)
4.2   Amended and Restated Bylaws of TerraForm Power, Inc. (incorporated by reference  to Exhibit 3.2 to the Current Report on Form 8-K, filed with the SEC on July 25, 2014)
5.1   Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
23.1   Consent of KPMG LLP, independent registered public accountants of TerraForm Power, Inc.
23.2   Consent of Ernst & Young LLP, independent registered public accountants of Imperial Valley Solar 1 Holdings II, LLC and Subsidiaries
23.3   Consent of Ernst & Young LLP, independent registered public accountants of First Wind Operating Entities
23.4   Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included as part of Exhibit 5.1)
24.1   Power of Attorney (included on signature page)
99.1   TerraForm Power, Inc. 2014 Second Amended and Restated Long-Term Incentive Plan (incorporated by reference to Exhibit 10.10 to the Registration Statement on Form S-1, File No. 333-196345, filed with the SEC on June 13, 2014)