Delaware | 04-3454702 |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
350 Merrimack Street, Lawrence, MA | 01843 |
(Address of Principal Executive Offices) | (Zip Code) |
Large accelerated filer þ | Accelerated filer o |
Non-accelerated filer o | Smaller reporting company o |
Title of securities to be registered | Amount to be registered | Proposed maximum offering price per share | Proposed maximum aggregate offering price | Amount of registration fee |
Common Stock, $0.001 par value per share | 5,600,000 shares (1) | $13.06 (2) | $73,136,000 | $9,420 |
(1) | The aggregate number of shares to be registered is subject to adjustment by reason of stock splits, stock dividends and other events pursuant to the terms of the 2014 Omnibus Incentive Plan, as applicable. Accordingly, pursuant to Rule 416 under the Securities Act of 1933 (“Securities Act”), this Registration Statement covers, in addition to the number of shares of common stock shown in the table above, an indeterminate number of shares of the Registrant’s common stock which may be subject to grant or otherwise issuable by operation of the provisions of the 2014 Omnibus Incentive Plan governing such adjustments. |
(2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act. The proposed maximum offering price per share and the proposed maximum aggregate offering price are based upon the average of the high ($13.31) and low ($12.80) sales price for the Registrant’s common stock as reported on the NASDAQ Global Select Market on May 22, 2014. |
• | NxStage’s Annual Report on Form 10-K for the fiscal year ended December 31, 2013, filed on March 3, 2014; |
• | NxStage’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2014, filed on May 8, 2014; |
• | NxStage’s Current Reports on Form 8-K filed on January 6, 2014, January 13, 2014 (with respect to Item 1.01 only) and May 28, 2014; and |
• | The description of NxStage’s common stock contained in the Registration Statement on Form 8-A filed on October 7, 2005, including any amendment or report updating such description of the common stock |
• | for any breach of the director’s duty of loyalty to the Registrant or its stockholders; |
• | for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; |
• | under Section 174 of the Delaware General Corporation Law regarding unlawful dividends and stock purchases; or |
• | for any transaction from which the director derived an improper personal benefit. |
• | it must indemnify its directors and officers to the fullest extent permitted by Delaware law; |
• | it may indemnify its other employees and agents to the same extent that it indemnified its officers and directors, unless otherwise determined by its Board of Directors; and |
• | it must advance expenses, as incurred, to its directors and executive officers in connection with a legal proceeding to the fullest extent permitted by Delaware law. |
(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 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 a prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) under the Securities Act 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; |
(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 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 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 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 Registrant pursuant to the provisions referred to in Item 6 hereof, 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. |
Signature | Title | Date | ||
/s/ Jeffrey H. Burbank | Chief Executive Officer and Director | May 30, 2014 | ||
Jeffrey H. Burbank | (Principal Executive Officer) | |||
/s/ Matthew W. Towse | Chief Financial Officer and Senior Vice President | May 30, 2014 | ||
Matthew W. Towse | (Principal Financial Officer) | |||
/s/ Kevin Hershberger | Chief Accounting Officer and Vice President | May 30, 2014 | ||
Kevin Hershberger | (Principal Accounting Officer) | |||
/s/ Robert G. Funari | Chairman of the Board of Directors | May 30, 2014 | ||
Robert G. Funari | ||||
/s/ Daniel A. Giannini | Director | May 30, 2014 | ||
Daniel A. Giannini | ||||
Director | ||||
Earl R. Lewis | ||||
/s/ Jean K. Mixer | Director | May 30, 2014 | ||
Jean K. Mixer | ||||
/s/ Craig W. Moore | Director | May 30, 2014 | ||
Craig W. Moore | ||||
/s/ Reid S. Perper | Director | May 30, 2014 | ||
Reid S. Perper | ||||
/s/ Jay W. Shreiner | Director | May 30, 2014 | ||
Jay W. Shreiner | ||||
/s/ Barry M. Straube | Director | May 30, 2014 | ||
Barry M. Straube |
Exhibit Number* | Description | |
4.1 | Restated Certificate of Incorporation. Filed as Exhibit 3.4 to NxStage’s Amendment No. 2 to its Registration Statement on Form S-1/A filed on October 7, 2005. | |
4.2 | Amended and Restated By-laws. Filed as Exhibit 3.5 to NxStage’s Amendment No. 2 to its Registration Statement on Form S-1/A filed on October 7, 2005. | |
5.1+ | Opinion of Hogan Lovells US LLP. | |
10 | 2014 Omnibus Incentive Plan. Filed as Appendix B to NxStage’s Definitive Proxy Statement on Schedule 14A filed on April 24, 2014. | |
23.1+ | Consent of Ernst & Young LLP, an independent registered public accounting firm. | |
23.2+ | Consent of Hogan Lovells US LLP (included in its opinion in Exhibit 5). | |
24+ | Powers of Attorney (contained in Part II hereof under Signatures and Power of Attorney). |
* | Exhibits previously filed with the Securities and Exchange Commission as exhibits to Form S-1 or S-1/A were filed under Commission File Number 333-126711. All other previously filed exhibits were filed under Commission File Number 0-51567. All such exhibits are incorporated herein by reference. |
+ | Filed herewith. |