Unassociated Document
Registration No. 333-138109
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 4
ON
FORM
S-3
TO
FORM
S-1
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
ACORN
ENERGY, INC.
(Exact
Name of Registrant as Specified in its Charter)
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Delaware
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7371
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22-2786081
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(State
or Other Jurisdiction of
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(Primary
Standard Industrial
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(I.R.S.
Employer
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Incorporation
or Organization)
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Classification
Code Number)
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Identification
No.)
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4
West Rockland Road
Montchanin,
Delaware 19710
(302)
656-1707
(Address,
Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s
Principal Executive Offices)
John
A. Moore
President
and Chief Executive Officer
Acorn
Energy, Inc.
4
West Rockland Road
Montchanin,
Delaware 19710
(302)
656-1707
(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent
for Service)
COPIES
TO
Sheldon
Krause, Esq
Eilenberg
Krause & Paul LLP
11
East 44th Street
, 19th
Floor
New
York, New York 10017
(212) 986-9700
Approximate date of commencement of
proposed sale of the securities to the public: From time to time after
the effective date of this registration statement.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. ¨
If any
of the securities being registered on this form are to be offered on a delayed
or continuous basis pursuant to Rule 415 under the Securities Act of 1933,
other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. x
If this
form is filed to register additional securities for an offering pursuant to
Rule 462(b) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. ¨
If this
form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
number of the earlier effective registration statement for the same
offering. ¨
If
this form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. ¨
If
this Form is a post-effective amendment to a registration statement filed
pursuant to General Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b) under the Securities
Act, check the following box. ¨
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 o Smaller
reporting company x
The
Registrant hereby amends this Registration Statement on such date or dates as
may be necessary to delay its effective date until the 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 of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
EXPLANATORY
NOTE
This
Post-Effective Amendment No. 4 on Form S-3 to the Registration Statement on Form
S-1 amends the Registration Statement on Form S-1, as previously amended to
date. The prospectus contained in this Post-Effective Amendment will,
upon effectiveness of this Post-Effective Amendment, supersede the prospectus
dated September 18, 2007, filed pursuant to Rule 424(b), as supplemented. All
filing fees payable in connection with the registration of the securities
covered hereby were previously paid in connection with the filing of the
original registration statement.
The
information in this prospectus is not complete and may be
changed. Holders may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities
and it is not soliciting an offer to buy these securities in any state where the
offer or sale is not permitted.
Subject
to completion, dated March 30, 2009
PROSPECTUS
ACORN
ENERGY, INC.
(formerly
Acorn Factor, Inc.)
268,451
Shares of Common Stock
This prospectus covers the offer and
sale of up to 268,451 shares of our common stock from time to time by certain
selling security holders named in this prospectus. Of the shares
being offered, 202,451 are issuable upon the exercise of outstanding warrants,
and 66,000 are issuable upon the exercise of outstanding
options.
We are
not offering any shares of common stock.
The
selling security holders will receive all of the net proceeds from sales of the
common stock covered by this prospectus and will pay all underwriting discounts
and selling commissions, if any, applicable to those sales. We will
not receive any proceeds from sales of any of these shares. However, we will
receive the exercise price of the warrants and the options to the extent they
are not exercised on a net or cashless exercise basis.
The
selling security holders may periodically sell the shares directly or through
agents, underwriters or dealers. The shares may be sold:
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in
the over-the-counter market, in privately negotiated transactions or
otherwise;
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directly
to purchasers or through agents, brokers, dealers or underwriters;
and
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at
market prices prevailing at the time of sale, at prices related to the
prevailing market prices, or at negotiated
prices.
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If
required, each time a selling security holder sells shares of common stock, we
will provide a prospectus supplement that will contain specific information
about the terms of that transaction. We urge you to carefully read
this prospectus and any accompanying prospectus supplement before you make an
investment decision.
Our
common stock is listed on the Nasdaq Global Market under the symbol
“ACFN.” On March 26, 2009, the closing price of our common stock was
$2.47.
Investing
in our securities involves certain risks. You should consider the
“Risk Factors” in deciding whether to buy any shares of our common
stock.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal
offense.
The
date of this prospectus is ______________, 2009
TABLE
OF CONTENTS
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PAGE
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SPECIAL
NOTE REGARDING FORWARD LOOKING STATEMENTS
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USE
OF PROCEEDS
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SELLING
SECURITYHOLDER
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PLAN
OF DISTRIBUTION
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LEGAL
MATTERS
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EXPERTS
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INFORMATION INCORPORATED BY
REFERENCE
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7 |
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WHERE
YOU CAN FIND MORE INFORMATION
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The
terms “ACFN,” the “Company,” “we,” “our” and “us” refer to Acorn Energy, Inc.
and its subsidiaries unless the context suggests otherwise. The term
“you” refers to a prospective purchaser of our common
stock.
SPECIAL
NOTE REGARDING FORWARD LOOKING STATEMENTS
Certain
statements contained in, or incorporated by reference in, this prospectus are
forward-looking in nature. These statements can be identified by the
use of forward-looking terminology such as “believes,” “expects,” “may,” “will,”
“should,” or “anticipates,” or the negatives thereof or comparable terminology,
or by discussions of strategy. You are cautioned that our business
and operations are subject to a variety of risks and uncertainties and,
consequently, our actual results may materially differ from those projected by
any forward-looking statements. Certain of these risks and
uncertainties are discussed below under the heading “Risk Factors” in our Annual
Report on Form 10-K for the fiscal year ended December 31, 2008, which is
incorporated by reference herein.
We
make no commitment to revise or update any forward-looking statements in order
to reflect events or circumstances after the date any such statement is
made.
USE
OF PROCEEDS
We will not receive any proceeds
from the sale of the shares by the selling security holders. To the
extent that the warrants or options are exercised by the selling security
holders for cash, rather than by cashless exercise, we will receive proceeds
constituting the exercise price of such warrants or options, less warrant
solicitation fees in the case of the warrants, if applicable. Any
such proceeds received by us through warrant or option exercises will be used
for working capital.
SELLING
SECURITY HOLDERS
On
July 31, 2006, we completed a private placement to investors of (1) 1,200,003
shares of common stock, (2) warrants to purchase 300,005 shares of common stock,
and (3) warrants issued to First Montauk Securities Corp, and its agents and
assignees, as partial consideration for its role as placement agent, to purchase
120,001 shares of common stock. The warrants issued in the private
placement have an exercise price of $2.78 and are exercisable through July 31,
2011.
On
July 20, 2006, we engaged Bibicoff & Associates to provide investor
relations services. In connection with the engagement, we issued to
Bibicoff & Associates an option to purchase up to 120,000 shares of common
stock. The option has fully vested and is exercisable as to the
remaining 66,000 shares until July 31, 2011 at a modified exercise price of
$2.96 per share.
On August
29, 2006 we completed a private placement of 16,132 shares of common stock and
warrants to purchase an additional 4,033 shares. The warrants have an
exercise price of $2.78 per share and are exercisable through July 31,
2011.
This
prospectus covers the sale by the selling security holders from time to time of
202,451 shares issuable upon exercise of outstanding warrants issued in the
private placements, and 66,000 shares issuable upon exercise of the Bibicoff
options.
We
issued the securities to the selling security holders without registration under
the Securities Act of 1933 (the “Securities Act“) in reliance upon the exemption
provided by Section 4(2) of the Securities Act for transactions not involving a
public offering. Prior to issuance, each selling security holder
represented to us that it was an accredited investor, as defined in Rule 501 of
Regulation D under the Securities Act, and that it was acquiring the securities
for investment purposes only and not with a view to, or sale in connection with,
any distibution thereof.
The term
"selling security holder" includes (i) each person and entity that is identified
in the table below (as such table may be amended from time to time by means of
an amendment to the registration statement of which this prospectus
forms a part) and (ii) any transferee, donee, pledgee or other successor of any
person or entity named in the table that acquires any of the shares of common
stock covered by this prospectus in a transaction exempt from
the
registration requirements of the Securities Act of 1933 and that is identified
in a supplement or amendment to this prospectus.
We
have listed below:
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the
name of each selling security
holder;
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the
number of shares of common stock beneficially owned by the selling
security holder as of the date of this
prospectus;
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the
maximum number of shares of common stock being offered by each of
them in this offering;
and
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the
number of shares of common stock to be owned by the selling security
holder after this offering (assuming sale of such maximum number of
shares) and the percentage of the class which such number constitutes (if
one percent or more).
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The
footnotes to the table identify each selling security holder that is a
registered broker-dealer or an affiliate of a registered
broker-dealer.
Except as
otherwise noted below, during the last three years, no selling security holder
has been an officer, director or affiliate of our company, nor has any selling
security holder had any material relationship with our company or affilliates
during that period. Each selling security holder represented at the closing of
the private placement that it did not have any contract, undertaking, agreement
or arrangement with any person to sell, transfer, pledge, hypothecate, grant any
option to purchase or otherwise dispose of any of the securities. Based on
information provided to us by the selling security holders, the selling security
holders purchased the securities in the ordinary course of
business.
The
shares of common stock being offered hereby are being registered to permit
public secondary trading, and the selling security holders are under no
obligation to sell all or any portion of their shares included in this
prospectus. The information contained in the following table is
derived from information provided to us by selling security holders, our books
and records, as well as from our transfer agent. Where we were unable
to obtain information from a selling security holder with respect to the total
number of shares beneficially owned by such holder, we have included only the
shares underlying warrants held by such holder. The following table
assumes the sale of all securities covered by this prospectus.
Unless
otherwise indicated, each person has sole investment and voting power with
respect to the shares indicated. For purposes of this table, a person or group
of persons is deemed to have “beneficial ownership” of any shares as of a given
date which such person has the right to acquire within 60 days after such
date.
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Selling Security
Holder
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Shares
Beneficially
Owned Prior to
Offering
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Shares Being
Offered
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Shares
Beneficially
Owned After
Offering
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Percentage of
Shares
Beneficially
Owned After
Completion of
Offering *
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Aledarmme,
LLC 1
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9,434
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2
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9,434 |
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0 |
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— |
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Awerks
Trust (Alan J Werksman TTE) 3
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37,915 |
4 |
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7,125 |
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30,790 |
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** |
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Joseph
W. Benson
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4,717 |
5 |
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4,717 |
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0 |
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— |
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Harvey
Bibicoff 6
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73,500
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7 |
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66,000 |
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7,500 |
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** |
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L.
Rowe Driver
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114,065 |
8 |
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2,359 |
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111,706 |
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** |
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Warren
M. Duffy
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16,945 |
9 |
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7,076 |
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9,869 |
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** |
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Albert
L. Fierro & Kathleen E. Fierro JT TEN 10
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2,359 |
8 |
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2,359 |
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0 |
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— |
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David
Garceu & Carmen Garceu JT TEN
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28,302 |
11 |
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28,302 |
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0 |
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— |
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Frank
I. Goodman
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22,727 |
12 |
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2,359 |
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20,368 |
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** |
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Keith
A. Goodman13
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40,925 |
14 |
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4,079 |
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36,846 |
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** |
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Michael
S. Goodman
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19,368 |
12 |
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2,359 |
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17,009 |
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** |
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John
Hughes
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1,416 |
15 |
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1,416 |
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0 |
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— |
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Jonathan
Kamen
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19,737 |
16 |
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12,500 |
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7,237 |
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** |
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Sheldon
Krause
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51,667, |
17 |
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5,000 |
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46,667 |
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** |
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Harriet
Leibowitz Revocable Trust18
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26,438 |
19 |
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2,359 |
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24,079 |
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** |
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Randall
McCathren
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45,590 |
20 |
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9,434 |
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36,156 |
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** |
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MIN
Capital Corp Retirement Trust21
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21,368 |
5 |
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4,717 |
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16,651 |
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** |
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Oppenheimer
& Co. Inc.22
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18,291 |
23 |
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8,160 |
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10,131 |
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** |
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Primum
Capital, LLC24
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63,750 |
25 |
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4,750 |
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59,000 |
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** |
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Carmine
T. Santandrea & Barbara J. Santandrea JT TEN
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9,434 |
2 |
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9,434 |
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0 |
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— |
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Michael
Solomon26
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128,395 |
27 |
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7,829 |
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120,566 |
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1.1 |
% |
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William
J. Stegeman
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28,302 |
28 |
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28,302 |
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0 |
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— |
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Kevin
T. Tolbert
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32,461 |
29 |
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9,434 |
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23,027 |
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** |
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Ian
Wallin
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2,500 |
30 |
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2,500 |
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0 |
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— |
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Daniel
J. Walsh13
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20,361 |
31 |
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10,000 |
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10,361 |
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** |
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Hank
J. Wolfert & Susie L. Wolfert JT TEN
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18,847 |
32 |
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5,689 |
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13,158 |
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** |
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Edward
Zale & Roberta Zale JT TEN
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36,684 |
33 |
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9,434 |
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27,250 |
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** |
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Samuel
M. Zentman34
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87,790 |
35 |
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1,324 |
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86,666 |
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** |
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TOTAL
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268,451 |
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*
Based upon 11,467,589 shares outstanding on March 26,
2009.
**
Less than 1%.
1 Voting
and dispositive control of the securities are exercised jointly by the following
persons who are members of Aledarmme: Elizabeth G. Brown, Alexander F. Giacco,
Jr., Marissa G. Rath, and Mary G. Walsh. Richard J. Giacco, a
Director of the Company is also a member of the company.
2 Includes
9,434 shares issuable upon exercise of a warrant for the purchase of Common
Stock.
3 Voting
and dispositive control of the shares is held by grantor and trustee Alan
Werksman.
4 Includes
10,415 shares issuable upon exercise of warrants for the purchase of Common
Stock.
5 Includes
4,717 shares issuable upon exercise of a warrant for the purchase of Common
Stock.
6 The
selling security holder is Chief Executive Officer of Bibicoff & Associates,
which has provided investor relations services to the
Company.
7 Includes
66,000 shares issuable upon the exercise of currently exercisable options to
purchase Common Stock and 7,500 shares issuable upon exercise of warrants to
purchase Common Stock.
8 Includes
2,359 shares issuable upon exercise of a warrant for the purchase of Common
Stock.
9 Includes
16,945 shares issuable upon exercise of a warrant for the purchase of Common
Stock.
10 Selling
security holder is a registered broker dealer.
11
Includes 28,302 shares issuable upon exercise of warrants to purchase Common
Stock.
12
Includes 4,004 shares issuable upon exercise of warrants for the purchase of
Common Stock.
13 Selling
security holder is an affiliate of a registered broker dealer who (i) purchased
the shares being registered for resale in the ordinary course of business and
(ii) at the time of the purchase, the selling security holder had no agreements
or understandings, directly or indirectly, with any person to distribute the
securities.
PLAN
OF DISTRIBUTION
Plan
of Distribution
On and
after the date of this prospectus, the selling security holders may, from time
to time, sell any or all of their shares of common stock on any stock exchange,
market or trading facility on which shares of our common stock are traded or in
private transactions. These sales may be at fixed or negotiated
prices. The selling security holders may use any one or more of the following
methods when selling shares:
•
ordinary brokerage transactions and transactions in which the broker-dealer
solicits a purchaser;
• block
trades in which the broker-dealer will attempt to sell the shares as agent but
may position and resell a portion of the block as principal to facilitate the
transaction;
•
purchases by a broker-dealer as principal and resale by the broker-dealer for
its account;
• an
exchange distribution in accordance with the rules of the applicable
exchange;
•
privately negotiated transactions;
• short
sales;
•
broker-dealers may agree with the selling securityholder to sell a specified
number of such shares at a stipulated price per share;
• a
combination of any such methods of sale; and
• any
other method permitted pursuant to applicable law.
The
selling security holders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
Broker-dealers
engaged by the selling security holders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or
discounts from the selling security holders (or, if any broker-dealer acts as
agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The selling security holders do not expect these commissions and
discounts to exceed what is customary in the types of transactions
involved.
The
selling security holders and any broker-dealers or agents that are involved in
selling the shares of our common stock may be deemed to be “underwriters” within
the meaning of the Securities Act in connection with such sales. In such event,
any commissions received by such broker-dealers or agents and any profit on the
resale of the shares of our common stock purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act. The
selling security holders have informed us that they do not have any agreement or
understanding, directly or indirectly, with any person to distribute our common
stock.
Certain
of the selling security holders are registered broker-dealers or affiliates of
registered broker dealers as indicated under “Selling Security
Holders.” Any selling security holder that is a registered
broker-dealer or its affiliate will be considered an “underwriter” within the
meaning of the Securities Act in connection with the sale of securities pursuant
to this prospectus and any commissions received by such broker-dealer and any
profit on the resale of the shares purchased by it may be deemed to be
underwriting commissions or discounts under the Securities Act.
First
Montauk Securities Corp, Inc. is a registered broker dealer and FINRA member
firm. First Montauk Securities Corp served as placement agent in
our private placement offering, and received, in addition to cash
commissions, warrants to purchase an aggregate of 120,001 shares of our common
stock with an exercise price of $2.78 per share (the “First Montauk Securities
Corp Warrants”). Of these warrants to purchase 120,001 shares of our common
stock, First Montauk Securities Corp assigned 88,662 to its officers and
employees and 16,318 to Oppenheimer & Co., a registered broker dealer and
FINRA member firm, as allowed under FINRA/NASD Rule 2710 (g)(2). The
warrants to purchase 16,318 shares of our common stock assigned to Oppenheimer
& Co., were assigned as partial compensation for its participation as
selling agent in the private placement pursuant to an agreement between First
Montauk Securities Corp. and Oppenheimer & Co. Oppenheimer
& Co. subsequently assigned a portion of its warrants to certain of its
employees. The registration statement of which this prospectus forms a
part includes the shares underlying the warrants held by the assignees of First
Montauk Securities Corp and Oppenheimer & Co. and its assignees. In
addition to the foregoing, for acting as placement agent in
the private placement offering completed by the Company on April 11,
2007, First Montauk Securities Corp. received warrants to purchase 181,211
shares of our common stock. First
Montauk Financial Corp. filed a Form BDW with the Securities and Exchange
Commission on December 31, 2008 to withdraw its registration as a
broker-dealer.
The
warrants
held by Oppenheimer & Co., its assignees and the assignees of First Montauk
expire on July 31, 2011.
We have
advised the selling security holders that the anti-manipulation rules of
Regulation M under the Exchange Act may apply to sales of shares in the market
and to the activities of the selling security holders and their affiliates. In
addition, we will make copies of this Prospectus available to the selling
security holders for the purpose of satisfying the Prospectus delivery
requirements of the Securities Act.
We have
entered into agreements with the selling security holders providing registration
rights and are required to pay all fees and expenses incident to the
registration of the shares of our common stock that are covered by
this prospectus, but not including underwriting discount, concessions,
commissions or fees of the selling security holders. We have agreed
to indemnify the selling security holders against certain losses, claims,
damages and liabilities, including liabilities under the Securities Act, that
arise out of or are based upon an untrue statement or alleged untrue statement
or omission or alleged omission in this registration statement (or any
supplement or amendment) except if the untrue statement or omission is from
information furnished to us by the selling security holders in writing
specifically for use in this registration statement (or any supplement or
amendment).
LEGAL
MATTERS
The
validity of the shares of Common Stock which may be offered pursuant to this
prospectus has been passed upon by Eilenberg Krause & Paul LLP, counsel to
the Company.
EXPERTS
The financial statements
incorporated in this prospectus by reference to our Annual Report on Form 10-K
for the year ended December 31, 2008 have been so incorporated in reliance on
the report of Kesselman & Kesselman, a member of PricewaterhouseCoopers
International Limited, an independent registered public accounting firm, given on the authority of said
firm as experts in auditing and accounting.
INFORMATION
INCORPORATED BY REFERENCE
The SEC allows us to “incorporate by
reference” the information we file with them, which means that we can disclose
important information to you by referring you to those documents. The
infornation incorporated by reference is considered to be a part of this
prospectus.
We incorporate by reference the
documents listed below and any future filings we will make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until
this offering has been completed:
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-
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Our
Annual Report on Form 10-K for the fiscal year ended December 31, 2008
filed on March 30, 2009;
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-
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The
description of our common stock contained in our registration statement on
Form 8-A, declared effective by the SEC in February 11, 1992;
and
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-
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Our
Current Reports on Form 8-K filed on February 19, 2009, February 25, 2009
and March 16, 2009.
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You may request a free copy of these
documents by writing to the Company, Acorn Energy, Inc., Attention: Investor
Relations, 4 West Rockland Road, Montchanin, Delaware 19710, or by calling
302.656.1708.
WHERE
YOU CAN FIND MORE INFORMATION
We are
subject to the informational requirements of the Securities Exchange Act of
1934. Accordingly, we file annual, quarterly and special reports,
proxy statements and other information with the SEC. You may read and
copy any document that we file at the SEC’s public reference room at 100 F
Street NE, Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the public reference
room. You can obtain copies of our SEC filings at prescribed rates
from the SEC Public Reference Section at 100 F Street NE, Washington, D.C.
20549. Our SEC filings are also available to you free of charge at
the SEC’s web site at http://www.sec.gov.
You
can read and print press releases, financial statements, our most recent annual
and quarterly reports and additional information about us, free of charge, at
our web site at http://www.acornenergyinc.com.
This
prospectus is a part of a post-effective amendment no. 4 on Form S-3 to
registration statement on Form S-1 filed by us with the SEC under the Securities
Act of 1933. This prospectus does not contain all of the information
set forth in the amended registration statement, certain parts of which are
omitted in accordance with the rules and regulations of the SEC. For
further information with respect to us and the shares of our common stock
offered hereby, please refer to the amended registration
statement. The amended registration statement may be inspected at the
public reference facilities maintained by the SEC at the addresses set forth
above. Statements in this prospectus about any document filed as an
exhibit are not necessarily complete and, in each instance, you should refer to
the copy of such document filed with the SEC. Each such statement is qualified
in its entirety by such reference.
PART
II – INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
Other Expenses of Issuance and Distribution.
The
Registrant will pay all expenses incident to the offering and sale to the public
of the shares being registered other than any commissions and discounts of
underwriters, dealers or agents and any transfer taxes. Such expenses
are set forth in the following table. All of the amounts shown are
estimates except the SEC registration fee.
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SEC
registration fee
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$ |
618 |
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|
Legal
fees and expenses
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|
40,000 |
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Accounting
fees and expenses
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|
5,000 |
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Miscellaneous
expenses
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|
2,500 |
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Total
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|
$ |
48,118 |
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Item 15.
Indemnification of Directors and Officers.
The
Certificate of Incorporation, as amended, and the Amended Bylaws of the
Registrant provide that the Registrant shall indemnify its officers, directors
and certain others to the fullest extent permitted by the General Corporation
Law of Delaware (“DGCL”). Section 145 of the DGCL provides that the
Registrant, as a Delaware corporation, is empowered, subject to certain
procedures and limitations, to indemnify any person against expenses (including
attorney’s fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with any threatened, pending or
completed action, suit or proceeding (including a derivative action) in which
such person is made a party by reason of his being or having been a director,
officer, employee or agent of the Registrant (each, an “Indemnitee”); provided
that the right of an Indemnitee to receive indemnification is subject to the
following limitations: (i) an Indemnitee is not entitled to indemnification
unless he acted in good faith and in a manner that he 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 conduct
was unlawful and (ii) in the case of a derivative action, an Indemnitee is not
entitled to indemnification in the event that he is judged to be liable to the
Company (unless and only to the extent that the court determines that the
Indemnitee is fairly and reasonably entitled to indemnification for such
expenses as the court deems proper). The statute provides that
indemnification pursuant to its provisions is not exclusive of other rights of
indemnification to which a person may be entitled under any bylaw, agreement,
vote of stockholders or disinterested directors, or otherwise.
Pursuant
to Section 145 of the DGCL, the Registrant has purchased insurance on behalf of
its present and former directors and officers against any liability asserted
against or incurred by them in such capacity or arising out of their status as
such.
In
accordance with Section 102(b)(7) of the DGCL, the Certificate of Incorporation
of the Registrant eliminates personal liability of the Registrant’s directors to
the Registrant or its stockholders for monetary damages for breach of their
fiduciary duties as a director, with certain limited exceptions set forth in
Section 102(b) (7) of the DGCL.
The
Registrant has entered into an indemnification agreement with all of its present
officers and directors and plans to enter into such agreements with all future
officers and directors. The terms of the agreement require that the
Registrant maintain a minimum level of insurance coverage for claims against
officers and directors and that the Registrant indemnify the officer and/or
director against claims against them that arise in their service on behalf of
the Registrant.
Item 16.
Exhibits.
(a) Exhibits —
See Exhibit Index on page II-5.
Item 17.
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 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. 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; 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.
(A)
Provided,
however, that, Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section
do not apply if the registration statement is on Form S-3 and 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 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, or is
contained in a form of prospectus filed pursuant to Rule 424(b) that is part of
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 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.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
If the
registrant is subject to Rule 430C (§230.430C of this chapter), 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 (§230.430A of
this chapter), 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.
(5) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities: The
undersigned registrant undertakes that 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.
(b) 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 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 such Act and will
be governed by the final adjudication of such issue.
EXHIBIT
INDEX
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No.
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4.1
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Specimen
certificate for the Common Stock (incorporated herein by reference to
Exhibit 4.2 to the Registrant’s Registration Statement on Form 8-A,
effective February 11, 1992).
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5.1
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Opinion
of Eilenberg Krause & Paul LLP.*
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#23.1
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Consent
of Kesselman & Kesselman CPA.
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23.2
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Consent
of Eilenberg Krause & Paul LLP (included in Exhibit 5.1
hereto).
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24.1
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Power
of Attorney (included in Amendment No.1 to the original Registration
Statement)
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#
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This
Exhibit is filed or furnished herewith.
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* |
Previously
filed. |
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-3 and has duly caused this post-effective amendment no. 4 on
Form S-3 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Township of Montchanin, State of Delaware, on this 30th day
of March, 2009.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed below by the following persons on the dates indicated in the
capacities indicated.
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ACORN
ENERGY, INC.
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By:
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/s/ JOHN A.
MOORE
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John
A. Moore
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Chairman
of the Board, President and Chief Executive
Officer
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Signature
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Title
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Date
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/s/
JOHN A. MOORE
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John
A. Moore
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Chairman
of the Board, President and Chief Executive Officer (Principal Executive
Officer)
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|
March
30, 2009
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/s/
MICHAEL BARTH
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Michael
Barth
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Chief
Financial Officer (Principal Financial Officer and Principal Accounting
Officer)
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March
30, 2009
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/s/
GEORGE MORGENSTERN
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George
Morgenstern
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|
Director
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|
March
30, 2009
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/s/
RICHARD RIMER
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Richard
Rimer
/s/
RICHARD J. GIACCO
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Director
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March
30, 2009
|
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Richard
J. Giacco
*
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Director
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Samuel
Zentman
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Director
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Joe
Musanti
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Director
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*By:
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/s/ JOHN A. MOORE
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March
30, 2009
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Attorney-in-Fact
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