As filed with the Securities and Exchange Commission on
May 14, 2010
Registration
No. 333-165821
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
Amendment No. 2
to
Form S-1
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
AMERESCO, INC.
(Exact name of registrant as
specified in its charter)
|
|
|
|
|
Delaware
(State or other jurisdiction
of
incorporation or organization)
|
|
4931
(Primary Standard
Industrial
Classification Code Number)
|
|
04-3512838
(I.R.S. Employer
Identification No.)
|
111 Speen Street, Suite 410
Framingham, Massachusetts 01701
(508) 661-2200
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
George P. Sakellaris
President and Chief Executive Officer
111 Speen Street, Suite 410
Framingham, Massachusetts 01701
(508) 661-2200
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Copies to:
|
|
|
Mark G. Borden, Esq.
Patrick J. Rondeau, Esq.
Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
(617) 526-6000
|
|
Thomas R. Burton, III, Esq.
Sahir Surmeli, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
(617) 542-6000
|
Approximate date of commencement of proposed sale to the
public: As soon as practicable after this
Registration Statement is declared effective.
If any of the securities being registered on this form are
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, as amended (the
Securities Act) please check the following
box. o
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, please check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the
same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, please check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the
same
offering. o
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. (Check one):
|
|
|
|
Large
accelerated
filer o
|
Accelerated
filer o
|
Non-accelerated
filer þ
|
Smaller
reporting
company o
|
(Do not check if a smaller reporting company)
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant
to Section 8(a), may determine.
EXPLANATORY NOTE
This Amendment No. 2 to the Registrants Registration Statement on Form S-1 (File No.
333-165821) is being filed solely for the purpose of filing exhibits, and no changes or additions
are being made hereby to the prospectus which forms a part of the Registration Statement.
Accordingly, the prospectus has been omitted from this filing.
Part II
Information
Not Required in Prospectus
|
|
Item 13.
|
Other
Expenses of Issuance and Distribution
|
The following table indicates the expenses to be incurred in
connection with the offering described in this Registration
Statement, other than underwriting discounts and commissions,
all of which will be paid by Ameresco. All amounts are estimated
except the Securities and Exchange Commission registration fee
and the FINRA filing fee.
|
|
|
|
|
|
|
Amount
|
|
|
Securities and Exchange Commission registration fee
|
|
$
|
8,913
|
|
Financial Industry Regulatory Authority fee
|
|
|
13,000
|
|
listing fee
|
|
|
*
|
|
Accountants fees and expenses
|
|
|
*
|
|
Legal fees and expenses
|
|
|
*
|
|
Blue Sky fees and expenses
|
|
|
*
|
|
Transfer Agents fees and expenses
|
|
|
*
|
|
Printing and engraving expenses
|
|
|
*
|
|
Miscellaneous
|
|
|
*
|
|
|
|
|
|
|
Total Expenses
|
|
$
|
*
|
|
|
|
|
|
|
* To be filed by amendment.
|
|
Item 14.
|
Indemnification
of Directors and Officers
|
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.
Our restated certificate of incorporation that will become
effective upon the closing of this offering provides that no
director of Ameresco 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 Delaware General
Corporation Law prohibits the elimination or limitation of
liability of directors for breaches of fiduciary duty.
Section 145 of the Delaware General Corporation Law
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.
Our restated certificate of incorporation provides that we 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
II-1
than an action by or in the right of Ameresco) by reason of the
fact that he or she is or was, or has agreed to become, a
director or officer of Ameresco, or is or was serving, or has
agreed to serve, at our 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, our 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. Our restated certificate of
incorporation provides that we will indemnify any Indemnitee who
was or is a party to an action or suit by or in the right of
Ameresco to procure a judgment in our favor by reason of the
fact that the Indemnitee is or was, or has agreed to become, a
director or officer of Ameresco, or is or was serving, or has
agreed to serve, at our 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 Ameresco, 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 us, 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 us against all expenses (including
attorneys fees) actually and reasonably incurred in
connection therewith. Expenses must be advanced to an Indemnitee
under certain circumstances.
We have entered into indemnification agreements with each of our
directors and our executive officers. These indemnification
agreements may require us, among other things, to indemnify our
directors and executive officers for some expenses, including
attorneys fees, judgments, fines and settlement amounts
incurred by a director or executive officer in any action or
proceeding arising out of his service as one of our directors or
executive officers, or any of our subsidiaries or any other
company or enterprise to which the person provides services at
our request.
We maintain a general liability insurance policy that covers
certain liabilities of directors and officers of our corporation
arising out of claims based on acts or omissions in their
capacities as directors or officers.
In any underwriting agreement we enter into in connection with
the sale of our Class A common stock being registered
hereby, the underwriters will agree to indemnify, under certain
conditions, us, our directors, our officers and persons who
control us with the meaning of the Securities Act of 1933, as
amended, against certain liabilities.
|
|
Item 15.
|
Recent
Sales of Unregistered Securities
|
Set forth below is information regarding securities sold by us
within the past three years. Also included is the consideration
received by us for such sales and information relating to the
section of the Securities Act, or rule of the Securities and
Exchange Commission, under which exemption from registration was
claimed.
Between January 1, 2007 and December 31, 2007, we
granted options to purchase an aggregate of 703,500 shares
of our Class A common stock with exercise prices ranging
from $6.82 to $8.44 per share, pursuant to our 2000 stock plan.
Between January 1, 2007 and December 31, 2007, we
issued an aggregate of 76,000 shares of our Class A
common stock upon exercise of options for aggregate
consideration of $74,015.
Between January 1, 2008 and December 31, 2008, we
granted options to purchase an aggregate of 151,500 shares
of our Class A common stock, with exercise prices ranging
from $8.44 to $12.11 per share, pursuant to our 2000 stock plan.
Between January 1, 2008 and December 31, 2008, we
issued an aggregate of 14,000 shares of our Class A
common stock upon exercise of options for aggregate
consideration of $67,250.
II-2
Between January 1, 2009 and December 31, 2009, we
granted options to purchase an aggregate of 431,000 shares
of our Class A common stock, with exercise prices ranging
from $12.11 to $22.00 per share, pursuant to our 2000 stock
plan. Between January 1, 2009 and December 31,
2009, we issued an aggregate of 869,000 shares of our
Class A common stock upon exercise of options for aggregate
consideration of $874,760.
Between January 1, 2010 and April 30, 2010, we have
granted options to purchase an aggregate of 398,000 shares
of our Class A common stock, each with an exercise price of
$26.09 per share, pursuant to our 2000 stock plan. Between
January 1, 2010 and April 30, 2010, we issued
225,000 shares of our Class A Common stock upon
exercise of options for aggregate consideration of $330,000.
The options and shares of our common stock described in this
Item 15 were issued pursuant to written compensatory plans
or arrangements with our employees, directors and consultants in
reliance upon the exemption from the registration requirements
of the Securities Act provided by Rule 701 promulgated
under the Securities Act or, in some cases, in reliance upon the
exemption from the registration requirements of the Securities
Act provided by Section 4(2) of the Securities Act and
Regulation D promulgated thereunder as sales by an issuer
not involving any public offering.
No underwriters were involved in the foregoing issuances of
securities. All of the foregoing securities are deemed
restricted securities for purposes of the Securities Act. All
certificates representing the issued shares of common stock
described in this Item 15 included appropriate legends
setting forth that the securities had not been registered and
the applicable restrictions on transfer.
The exhibits to the registration statement are listed in the
Exhibit Index to this registration statement and are
incorporated by reference herein.
The undersigned registrant hereby undertakes to provide to the
underwriters at the closing specified in the underwriting
agreement, certificates in such denominations and registered in
such names as required by the underwriters to permit prompt
delivery to each purchaser.
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. 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 the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in the form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to
be part of the registration statement as of the time it was
declared effective.
(2) For purposes of determining any liability under the
Securities Act, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration
statement
II-3
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) For the purpose of determining liability under the
Securities Act to any purchaser, each prospectus filed pursuant
to Rule 424(b) as part of a registration statement relating
to an offering, other than registration statements relying on
Rule 430B or other than prospectuses filed in reliance on
Rule 430A, shall be deemed to be part of and included in
the registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such
first use, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such date of first use.
(4) For the purpose of determining liability of the
registrant under the Securities Act to any purchaser in the
initial distribution of the securities, in a primary offering of
securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant has duly caused this Amendment No. 2 to
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of
Framingham, Commonwealth of Massachusetts, on the
14th day
of May, 2010.
AMERESCO, INC.
|
|
|
|
By:
|
/s/ George
P. Sakellaris
|
George P. Sakellaris
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this
Amendment No. 2 to Registration Statement has been signed
by the following persons in the capacities and on the dates
indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ George
P. Sakellaris
George
P. Sakellaris
|
|
Chairman of the Board of Directors, President and Chief
Executive Officer (Principal Executive Officer)
|
|
May 14, 2010
|
|
|
|
|
|
/s/ Andrew
B. Spence
Andrew
B. Spence
|
|
Chief Financial Officer
(Principal Financial and
Accounting Officer)
|
|
May 14, 2010
|
|
|
|
|
|
*
David
J. Anderson
|
|
Director
|
|
May 14, 2010
|
|
|
|
|
|
/s/ David
J. Corrsin
David
J. Corrsin
|
|
Director
|
|
May 14, 2010
|
|
|
|
|
|
*
William
M. Bulger
|
|
Director
|
|
May 14, 2010
|
|
|
|
|
|
*
Michael
E. Jesanis
|
|
Director
|
|
May 14, 2010
|
|
|
|
|
|
*
Guy
W. Nichols
|
|
Director
|
|
May 14, 2010
|
|
|
|
|
|
*
Joseph
W. Sutton
|
|
Director
|
|
May 14, 2010
|
|
|
|
|
|
|
|
* By:
|
|
/s/ David
J. Corrsin
David
J. Corrsin
Attorney-in-Fact
|
|
|
|
|
II-5
EXHIBIT INDEX
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
1
|
.1**
|
|
Form of Underwriting Agreement
|
|
3
|
.1**
|
|
Form of Amended and Restated Certificate of Incorporation of the
Registrant, to be filed and effective prior to the closing of
the offering
|
|
3
|
.2**
|
|
Form of Amended and Restated Certificate of Incorporation of the
Registrant, to be filed promptly following the closing of the
offering
|
|
3
|
.3**
|
|
Form of Amended and Restated By-Laws of the Registrant, to be
effective prior to the closing of the offering
|
|
4
|
.1**
|
|
Specimen Certificate evidencing shares of Class A common
stock
|
|
5
|
.1**
|
|
Opinion of Wilmer Cutler Pickering Hale and Dorr LLP
|
|
10
|
.1*
|
|
Lease dated November 20, 2000 between Ameresco, Inc. and
BCIA New England Holdings, LLC
|
|
10
|
.2*
|
|
First Amendment to Lease dated November 2001 by and between
Ameresco, Inc. and BCIA New England Holdings, LLC
|
|
10
|
.3*
|
|
Second Amendment to Lease and Extension Agreement dated
April 8, 2005 by and between Ameresco, Inc. and BCIA New
England Holdings, LLC
|
|
10
|
.4*
|
|
Third Amendment to Lease dated April 17, 2007 by and
between RREEF America REIT III-Z1 LLC and Ameresco, Inc.
|
|
10
|
.5
|
|
Amended and Restated Credit and Security Agreement dated
June 10, 2008 among Ameresco, Inc., certain guarantors
party thereto, certain lenders party thereto from time to time
and Bank of America, N.A. as Administrative Agent
|
|
10
|
.6*
|
|
Ameresco, Inc. 2000 Stock Incentive Plan
|
|
10
|
.7*
|
|
Form of Incentive Stock Option Agreement granted under Ameresco,
Inc. 2000 Stock Incentive Plan
|
|
10
|
.8*
|
|
Form of Non-Qualified Stock Option Agreement granted under
Ameresco, Inc. 2000 Stock Incentive Plan
|
|
10
|
.9*
|
|
Form of Restricted Stock Agreement granted under Ameresco, Inc.
2000 Stock Incentive Plan
|
|
10
|
.10**
|
|
Ameresco, Inc. 2010 Stock Incentive Plan
|
|
10
|
.11**
|
|
Form of Incentive Stock Option Agreement granted under Ameresco,
Inc. 2010 Stock Incentive Plan
|
|
10
|
.12**
|
|
Form of Non-Qualified Stock Option Agreement granted under
Ameresco, Inc. 2010 Stock Incentive Plan
|
|
10
|
.13**
|
|
Form of Restricted Stock Agreement granted under Ameresco, Inc.
2010 Stock Incentive Plan
|
|
10
|
.14*
|
|
Stockholder Agreement dated as of September 25, 2008 by and
among the Registrant, Samuel T. Byrne, AMCAP Holdings, Ltd.,
George P. Sakellaris and such other persons who from time to
time become party thereto
|
|
10
|
.15**
|
|
Form of Indemnification Agreement entered into between the
Registrant and each director and executive officer
|
|
10
|
.16+
|
|
Revised Final Proposal, DOE Savannah River Site, Biomass
Cogeneration Facility and K and L Area Heating Plants, submitted
by Ameresco Federal Solutions, under DOE Contract No.
DE-AM36-02NT41457,
May 11, 2009
|
|
21
|
.1**
|
|
Subsidiaries of the Registrant
|
|
23
|
.1*
|
|
Consent of Caturano and Company, P.C.
|
|
23
|
.2**
|
|
Consent of Wilmer Cutler Pickering Hale and Dorr LLP (included
in Exhibit 5.1)
|
|
23
|
.3*
|
|
Consent of Frost & Sullivan
|
|
24
|
.1*
|
|
Powers of Attorney of David J. Anderson, William M. Bulger, Guy
W. Nichols and Joseph W. Sutton (included on signature page)
|
|
24
|
.2*
|
|
Power of Attorney of Michael E. Jesanis
|
|
|
|
* |
|
Previously filed |
|
** |
|
To be filed by amendment. |
|
|
|
+ |
|
Confidential treatment requested as to certain portions, which
portions have been omitted and filed separately with the
Securities and Exchange Commission. |
II-6