Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1 Filing Table of Contents
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S-1/A — Pre-Effective Amendment to Registration Statement (General Form)
(Address, including zip code,
and telephone number, including area code, of Registrant’s
principal executive offices)
Donald R. Young
President and Chief Executive Officer
Aspen Aerogels, Inc.
30 Forbes Road, Building B Northborough, Massachusetts01532
(508) 691-1111
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Copies to:
Sahir Surmeli, Esq.
Jonathan L. Kravetz, Esq.
Thomas R. Burton, III, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center Boston, Massachusetts02111
(617) 542-6000
Vincent Pagano, Jr., Esq.
Simpson Thacher & Bartlett LLP
425 Lexington Avenue New York, New York10017
(212) 455-2000
Approximate date of commencement of proposed sale to the
public: As soon as practicable after this
registration statement becomes effective.
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 as amended (the
“Securities Act”), 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, 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, 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, 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
(Do not check if a smaller reporting company)
Smaller reporting
company o
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 Amendment No. 1 to the Registration Statement on
Form S-1
(the
“Form S-1”)
of Aspen Aerogels, Inc. is being filed solely for the purpose of
adding Exhibits to the original filing of the
Form S-1,
filed on June 24, 2011. Other than the addition of exhibits
and corresponding changes to the exhibit index and signature
page, the remainder of the
Form S-1
is unchanged. Accordingly, the prospectus that forms a part of
the
Form S-1
is not reproduced in this Amendment No. 1. This Amendment
No. 1 does not reflect events occurring after the filing
date of the original
Form S-1,
or modify or update the disclosures therein in any way other
than as required to reflect the amendment set forth below.
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 us. All of the amounts are
estimated except the SEC registration fee, the FINRA filing fee
and the NYSE listing fee.
Amount to
be paid
SEC registration fee
$
13,352
NYSE listing fee
*
FINRA filing fee
12,000
Printing and mailing
*
Legal fees and expenses
*
Accounting fees and expenses
*
Blue sky fees and expenses
*
Transfer agent and registrar
*
Miscellaneous
*
Total
$
*
*
To be provided by amendment.
Item 14.
Indemnification
of Directors and Officers.
Our restated certificate of incorporation and restated by-laws
that will be effective upon completion of the offering provide
that each person who was or is made a party or is threatened to
be made a party to or is otherwise involved (including, without
limitation, as a witness) in any action, suit or proceeding,
whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was one of our directors
or officers or is or was serving at our request as a director,
officer, or trustee of another corporation, or of a partnership,
joint venture, trust or other enterprise, including service with
respect to an employee benefit plan, whether the basis of such
proceeding is alleged action in an official capacity as a
director, officer or trustee or in any other capacity while
serving as a director, officer or trustee, shall be indemnified
and held harmless by us to the fullest extent authorized by the
Delaware General Corporation Law against all expense, liability
and loss (including attorneys’ fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement)
reasonably incurred or suffered by such.
Section 145 of the Delaware General Corporation Law permits
a corporation to indemnify any director or officer of the
corporation against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with any action, suit or
proceeding brought by reason of the fact that such person is or
was a director or officer of the corporation, if such person
acted in good faith and in a manner that 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, if he or she had no reasonable cause to believe his
or her conduct was unlawful. In a derivative action (i.e., one
brought by or on behalf of the corporation), indemnification may
be provided only for expenses actually and reasonably incurred
by any director or officer in connection with the defense or
settlement of such an action or suit if such person acted in
good faith and in a manner that he or she reasonably believed to
be in, or not opposed to, the best interests of the corporation,
except that no indemnification shall be provided if such person
shall have been adjudged to be liable to the corporation, unless
and only to the extent that the Delaware Chancery Court or the
II-1
court in which the action or suit was brought shall determine
that such person is fairly and reasonably entitled to indemnity
for such expenses despite such adjudication of liability.
Pursuant to Section 102(b)(7) of the Delaware General
Corporation Law, Article VI of our restated certificate of
incorporation eliminates the liability of a director to us or
our stockholders for monetary damages for such a breach of
fiduciary duty as a director, except for liabilities arising:
•
from any breach of the director’s duty of loyalty to us or
our stockholders;
•
from acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
•
under Section 174 of the Delaware General Corporation
Law; and
•
from any transaction from which the director derived an improper
personal benefit.
We have entered into indemnification agreements with our
non-employee directors and will enter into similar agreements
with certain officers, in addition to the indemnification
provided for in our restated certificate of incorporation and
restated by-laws, and intend to enter into indemnification
agreements with any new directors and executive officers in the
future. We have purchased and intend to maintain insurance on
behalf of any person who is or was a director or officer against
any loss arising from any claim asserted against him or her and
incurred by him or her in any such capacity, subject to certain
exclusions.
The foregoing discussion of our restated certificate of
incorporation, restated by-laws, indemnification agreements, and
Delaware law is not intended to be exhaustive and is qualified
in its entirety by such restated certificate of incorporation,
restated by-laws, indemnification agreements, or law.
Reference is made to our undertakings in Item 17 with
respect to liabilities arising under the Securities Act.
Reference is also made to the form of underwriting agreement
filed as Exhibit 1.1 to this registration statement for the
indemnification agreements between us and the underwriters.
Item 15.
Recent Sales
of Unregistered Securities.
Set forth below is information regarding shares of common stock
and preferred stock issued, and options granted, by us within
the past three years that were not registered under the
Securities Act. Also included is the consideration, if any,
received by us for such shares, options and warrants 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.
Stock
Issuances
A. From January 30, 2008 through May 27, 2008, we
issued $8.0 million promissory notes. The then outstanding
principal amount and accrued but unpaid interest of the
promissory notes converted into shares of our
Series B-1
preferred stock on June 10, 2008, which in turn were
converted into shares of our common stock on August 14,2009. See Items C and I below.
B. On June 10, 2008, in connection with our
reorganization, we issued 758,795 shares of
Series A-1
preferred stock, 498,303 shares of
Series A-2
preferred stock and 80,454 shares of
Series A-3
preferred stock as a result of the conversion of our predecessor
company’s Series D preferred stock, Series C
preferred stock and Series A preferred stock, respectively.
These shares of preferred stock were converted into common stock
in connection with a recapitalization in August 2009. See
Item I below.
C. On June 10, 2008, in connection with our
reorganization, we issued 1,563,681 shares of
Series B-1
preferred stock, 4,786,982 shares of
Series B-2
preferred stock and 7,971,886 shares of
Series B-3
preferred stock as a result of the conversion of our predecessor
company’s outstanding
II-2
notes with aggregate accrued obligations of $93.0 million.
These shares of preferred stock were converted into common stock
in connection with a recapitalization in August 2009. See
Item I below.
D. On June 10, 2008, in connection with our
reorganization, we issued and sold 4,158,875 shares of its
Series B-1
preferred stock for an aggregate purchase price of
$26.6 million. These shares of preferred stock were
converted into common stock in connection with a
recapitalization in August 2009. See Item I below.
E. On June 10, 2008, in connection with our
reorganization, we issued warrants to purchase
149,898 shares of our common stock to 54 private accredited
investors with a weighted-average exercise price of $0.003 per
share. These warrants are exercisable for a term of eight years.
F. On October 29, 2008, as part of the warrants issued
in Item E above, we issued 42 shares of our common
stock to one accredited investor upon the exercise of a warrant
at an exercise price of $0.003 per share.
G. On November 18, 2008, as part of the warrants
issued in Item E above, we issued 14,246 shares of our
common stock to one accredited investor upon the exercise of a
warrant at an exercise price of $0.003 per share.
H. On June 25, 2009, as part of the warrants issued in
Item E above, we issued 2,272 shares of our common
stock to one accredited investor upon the exercise of a warrant
at an exercise price of $0.003 per share.
I. On August 14, 2009, we consummated a
recapitalization and issued 25,541,532 shares of common
stock, which reflects a
1-for-3
reverse stock split effected on September 25, 2009, in
exchange for all of our outstanding
Series A-1
preferred stock,
Series A-2
preferred stock,
Series A-3
preferred stock,
Series B-1
preferred stock,
Series B-2
preferred stock and
Series B-3
preferred stock. The
Series B-1
preferred stock converted at a ratio of
2-for-1 and
all other series of preferred stock converted at a ratio of
1-for-1.
J. On August 14, 2009, we issued and sold
27,415,936 shares of Series A preferred stock, which
reflects a
1-for-3
reverse stock split effected on September 25, 2009, to five
accredited investors at a price of approximately $0.58 per share
for an aggregate purchase price of approximately
$16.0 million. Each share of Series A preferred stock
will convert automatically into one share of common stock upon
the completion of this offering and any accumulated dividends
will be paid in shares of our common stock.
K. On September 10, 2009, we issued and sold
3,736,592 shares of Series A preferred stock, which
reflects a
1-for-3
reverse stock split effected on September 25, 2009, to 37
accredited investors at a price of approximately $0.58 per share
for an aggregate purchase price of approximately
$2.2 million. Each share of Series A preferred stock
will convert automatically into one share of common stock upon
the completion of this offering and any accumulated dividends
will be paid in shares of our common stock.
L. On September 14, 2009, we issued and sold
21,690,673 shares of Series A preferred stock, which
reflects a
1-for-3
reverse stock split effected on September 25, 2009, to 17
accredited investors at a price of approximately $0.58 per
share. Each share of Series A preferred stock will convert
automatically into one share of common stock upon the completion
of this offering and any accumulated dividends will be paid in
shares of our common stock.
M. On September 22, 2010, we issued and sold
14,961,075 shares of Series B preferred stock to 13
accredited investors at a price of approximately $1.34 per
share. Each share of Series B preferred stock will convert
automatically into one share of common stock upon the completion
of this offering and any accumulated dividends will be paid in
shares of our common stock.
N. On October 20, 2010, we issued and sold
1,049,217 shares of Series B preferred stock to 33
accredited investors at a price of approximately $1.34 per
share. Each share of Series B preferred
II-3
stock will convert automatically into one share of common stock
upon the completion of this offering and any accumulated
dividends will be paid in shares of our common stock.
O. On December 29, 2010, in connection with a note
financing, we issued warrants to purchase 1,496,107 shares
of our common stock to four accredited investors with an
exercise price of $0.001 per share. These warrants are
exercisable for a term of seven years. As of March 31,2011, of these warrants, warrants to purchase
502,692 shares of our common stock had been exercised.
P. On March 17, 2011, one of our principal
stockholders exercised warrants to purchase 984 shares of
our common stock at an exercise price of $0.003 per share.
Q. On June 1, 2011, we issued $26.0 million in
aggregate principal amount of convertible notes to nine
accredited investors. The unpaid principal amount plus accrued
interest of the convertible notes will automatically convert
upon the closing of the offering made hereby into a number of
shares of our common stock equal to the quotient obtained by
dividing the unpaid principal amount of the convertible notes
plus interest accrued but unpaid thereon, by 87.5% of the
initial public offering price. Assuming an initial public
offering price of $ per share,
which is the mid-point of the price range set forth on the cover
page of this prospectus, the $26.0 million in principal
amount of the outstanding convertible notes will convert into
approximately shares
of our common stock.
R. On June 15, 2011, we issued $4.0 million in
convertible notes to four accredited investors on the same terms
as those described above in Item Q.
Stock Option
Grants
From January 1, 2008 through May 31, 2011, we granted
stock options under our 2001 equity incentive plan, as amended,
to purchase an aggregate of 14,120,062 shares of common
stock, net of forfeitures, at a weighted-average exercise price
of $0.62 per share, to certain of our employees, consultants and
directors.
Securities Act
Exemptions
Except as otherwise indicated above, we deemed the offers, sales
and issuances of the securities described above to be exempt
from registration under the Securities Act in reliance on
Section 4(2) of the Securities Act, including
Regulation S, Regulation D and Rule 506
promulgated thereunder, relative to transactions by an issuer
not involving a public offering. All purchasers of securities,
which included a combination of foreign and U.S. investors,
in transactions exempt from registration pursuant to
Regulation D
and/or
Regulation S represented to us that they were accredited
investors and were acquiring the shares for investment purposes
only and not with a view to, or for sale in connection with, any
distribution thereof and that they could bear the risks of the
investment and could hold the securities for an indefinite
period of time. The purchasers received written disclosures that
the securities had not been registered under the Securities Act
and that any resale must be made pursuant to a registration
statement or an available exemption from such registration.
We deemed the grants of stock options described above under
“— Stock Option Grants” to be exempt from
registration under the Securities Act in reliance on
Rule 701 or Regulation S of the Securities Act as
offers and sales of securities under compensatory benefit plans
and contracts relating to compensation in compliance with
Rule 701. Each of the recipients of securities in any
transaction exempt from registration either received or had
adequate access, through employment, business or other
relationships, to information about us.
All certificates representing the securities issued in the
transactions described in this Item 15 included appropriate
legends setting forth that the securities had not been offered
or sold pursuant to a registration statement and describing the
applicable restrictions on transfer of the securities. There
were no underwriters employed in connection with any of the
transactions set forth in this Item 15.
All other schedules have been omitted because they are not
applicable.
Financial
Statement Schedules
All schedules have been omitted because they are not required or
are not applicable or the required information is shown in the
financial statements or notes thereto.
Item 17.
Undertakings
(a) 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.
(b) 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 described under Item 14 above, 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.
(c) 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 a 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 this registration statement as
of the time it was declared effective.
(2) For the purpose 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 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.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant certifies that it has duly caused this registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Northborough,
Massachusetts, on July 26, 2011.
ASPEN AEROGELS, INC.
By:
/s/ Donald
R. Young
Donald R. Young
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
Signature
Title
Date
/s/ Donald
R. Young
Donald
R. Young
President, Chief Executive Officer and Director (principal
executive officer)
Form of restated by-laws of the Registrant to be effective upon
completion of this offering.
4
.1*
Form of common stock certificate.
4
.2+
Form of warrant to purchase common stock issued by the
Registrant in connection with 2004 and 2005 financing
arrangements, as amended and restated.
4
.3+
Form of warrant to purchase common stock issued by the
Registrant in connection with the 2005 equity financing, as
amended and restated.
4
.4+
Form of warrant to purchase common stock issued by the
Registrant in connection with the 2008 reorganization.
4
.5+
Form of warrant to purchase common stock issued by the
Registrant in connection with the 2008 financing.
4
.6+
Form of warrant to purchase common stock issued by the
Registrant in connection with the 2010 subordinated note and
warrant financing.
5
.1*
Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C., counsel to the Registrant, with respect to the
legality of securities being registered.
10
.1.1+
2001 equity incentive plan, as amended.
10
.1.2+
Form of incentive stock option agreement granted under 2001
equity incentive plan, as amended.
10
.1.3+
Form of non-qualified stock option agreement granted under 2001
equity incentive plan, as amended.
10
.2.1*
2011 employee, director and consultant equity incentive
plan.
10
.2.2*
Form of stock option agreement granted under 2011 employee,
director and consultant equity incentive plan.
10
.3+
Multi-tenant industrial net lease, dated August 20, 2001,
by and between the Registrant and Cabot II — MA1M03,
LLC (as successor landlord to TMT290 Industrial Park, Inc.), as
amended.
10
.4+
Loan and security agreement by and between the Registrant and
Silicon Valley Bank, dated as of March 31, 2011, as amended.
10
.5+
Form of subordinated note issued by the Registrant in the 2010
subordinated note and warrant financing.
10
.6*
Form of convertible note issued by the Registrant in the 2011
convertible note financing.
10
.7*
Executive agreement by and between the Registrant and Donald R.
Young.
10
.8*
Executive agreement by and between the Registrant and John F.
Fairbanks.
10
.9*
Executive agreement by and between the Registrant and Harry R.
Walkoff.
10
.10*
Executive agreement by and between the Registrant and Kevin A.
Schmidt.
10
.11*
Executive agreement by and between the Registrant and George L.
Gould, Ph.D.
10
.12*
Executive agreement by and between the Registrant and
Christopher L. Marlette.
