S-8 1 ds8.htm FORM S-8 Form S-8

As filed with the Securities and Exchange Commission on May 25, 2011

Registration No. 333-                

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

DuPont Fabros Technology, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Maryland   20-8718331

(State or other jurisdiction of

incorporation or organization)

  

(IRS Employer

Identification Number)

1212 New York Avenue, N.W., Suite 900

Washington, D.C.

   20005
(Address of principal executive offices)   (Zip code)

 

 

DuPont Fabros Technology, Inc. 2011 Equity Incentive Plan

(Full title of the plan)

 

 

Hossein Fateh

President and Chief Executive Officer

DuPont Fabros Technology, Inc.

1212 New York Avenue, N.W. , Suite 900

Washington, D.C. 20005

(Name and address of agent for service)

(202) 728-0044

(Telephone number, including area code, of agent for service)

 

 

Copy to:

Stuart A. Barr, Esq.

Hogan Lovells US LLP

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5600

 

 

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   x    Accelerated filer   ¨
Non-accelerated filer   ¨  (Do not check if a smaller reporting company)    Smaller reporting company   ¨

 

 

CALCULATION OF REGISTRATION FEE

 

 
Title of securities to be registered  

Amount

to be

registered (1)

  

Proposed

maximum

offering price

per share (2)

  

Proposed

maximum

aggregate

offering price

  

Amount of

registration fee

Common Stock, par value $0.001 per share

   6,300,000 shares   $24.86   $156,618,000   $18,184
 
 

 

(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this Registration Statement shall also cover such indeterminate number of additional shares as may be offered or issued to prevent dilution resulting from stock splits, stock dividends, or similar transactions.
(2) Estimated solely for the purpose of determining the amount of the registration fee pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as amended, based on the average of the high and low prices of the Company’s common stock on the New York Stock Exchange on May 20, 2011.

 

 

 

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The documents containing the information specified in Part I will be sent or given to employees participating in the DuPont Fabros Technology, Inc. 2011 Equity Incentive Plan (the “Plan”), as specified by Rule 428(b)(1) promulgated under the Securities Act of 1933, as amended (the “Securities Act”). In accordance with the instructions to Part I of Form S-8, such documents will not be filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 promulgated under the Securities Act. These documents and the documents incorporated by reference pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute the prospectus as required by Section 10(a) of the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

The following documents are incorporated by reference in this Registration Statement:

 

  •  

The Annual Report on Form 10-K for the fiscal year ended December 31, 2010 filed by the Company on February 24, 2011;

 

  •  

The Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2011 filed by the Company on May 4, 2011;

 

  •  

Current Reports on Form 8-K filed by the Company on January 14, 2011, February 9, 2011, February 22, 2011, March 1, 2011, March 8, 2011, March 9, 2011 and March 18, 2011; and

 

  •  

The description of the Company’s common stock contained in the Registration Statement on Form 8-A, filed by the Company on October 16, 2007 pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and all amendments or reports filed for the purpose of updating such description.

All documents and reports subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold, or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents or reports, except that the Company is not incorporating any information not deemed to be filed with the Commission, including, without limitation, any information furnished under either Item 2.02 or Item 7.01 of any Current Report on Form 8-K.

Any statement contained herein or in a document all or a portion of which is incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein, or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Item 4. Description of Securities.

Not applicable.

 

Item 5. Interests of Named Experts and Counsel.

Not applicable.

Item 6. Indemnification of Directors and Officers.

The Maryland General Corporation Law (the “MGCL”) permits a Maryland corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be a party by reason of their service in those or other capacities unless it is established that (a) the act or omission of the director or officer was material to the matter giving rise to the proceeding and (i) was committed in bad faith or (ii) was a result of active and deliberate dishonesty, (b) the director or officer actually received an improper personal benefit in money, property or services or (c) in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. However, a Maryland corporation may not indemnify for an adverse judgment in a suit by or in the right of the corporation if the director or officer was adjudged to be liable to the corporation nor may a director be indemnified in circumstances in which the director is found liable for an improper personal benefit. In accordance with the MGCL, as a condition to advancement of expenses, we must obtain (a) a written affirmation by the director or officer of his good faith belief that he has met the standard of conduct necessary for indemnification and (b) a written undertaking by or on his behalf to repay the amount paid or reimbursed by us if it shall ultimately be determined that the standard of conduct was not met.

Our charter and bylaws provide that we have the power, to the maximum extent permitted by Maryland law in effect from time to time, to obligate our company, and our bylaws obligate us, to indemnify, and to pay or reimburse reasonable expenses in advance of final disposition of a proceeding to, (a) any individual who is a present or former director or officer or (b) any individual who, while a director or officer of our company and at our request, serves or has served as a director, officer, partner or trustee of another corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan or any other enterprise, from and against any claim or liability to which such person may become subject by reason of service in such capacity. We have the power, with the approval of our board of directors or any duly authorized committee thereof, to provide such indemnification and advancement of expenses to a person who served a predecessor of our company in any of the capacities described above and to any employee or agent of our company or a predecessor of our company. Maryland law requires us to indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he is made a party by reason of his service in that capacity.

In addition, we have entered into indemnification agreements with our executive officers and directors that obligate us to indemnify them to the maximum extent permitted by Maryland law. Under such agreements, we must pay all indemnifiable expenses in advance of the final disposition of any proceeding if the director or executive officer furnishes us with a written affirmation of the director’s or executive officer’s good faith belief that the standard of conduct necessary for indemnification by our company has been met and a written undertaking to reimburse us if a court of competent jurisdiction, in a final judgment, not subject to appeal, determines that the applicable standard of conduct necessary for indemnification by our company has not been met.

 

Item 7. Exemption From Registration Claimed.

Not applicable.

 

Item 8. Exhibits.

 

Exhibit
No.

   

Description

  5.1    Opinion of Hogan Lovells US LLP regarding the validity of the shares of common stock registered hereby.
23.1    Consent of Ernst & Young LLP, independent registered public accounting firm, relating to DuPont Fabros Technology, Inc.
23.2    Consent of Ernst & Young LLP, independent registered public accounting firm, relating to DuPont Fabros Technology, L.P.
23.3    Consent of Hogan Lovells US LLP (included in Exhibit 5.1).
24.1    Power of Attorney (included on signature page hereto).

Item 9. Undertakings.

(a) The undersigned registrant hereby undertakes:

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;

(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;

(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this 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 therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

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

(h) 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 for 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.

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 the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Washington, District of Columbia, on May 25, 2011.

 

DUPONT FABROS TECHNOLOGY, INC.
By:  

/s/ Hossein Fateh

 

Hossein Fateh

President and Chief Executive Officer

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Hossein Fateh or Lammot J. du Pont and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments to this Registration Statement), and to file the same, with all exhibits thereto, and any other documents in connection therewith, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

   

Title

  

Date

/s/ Lammot J. du Pont

Lammot J. du Pont

    Executive Chairman of the Board of Directors   May 25, 2011

/s/ Hossein Fateh

Hossein Fateh

   

President and Chief Executive Officer and Director

(Principal Executive Officer)

   May 25, 2011

/s/ Mark L. Wetzel

Mark L. Wetzel

   

Executive Vice President, Chief Financial Officer and Treasurer

(Principal Financial Officer)

   May 25, 2011

/s/ Jeffrey H. Foster

Jeffrey H. Foster

   

Chief Accounting Officer

(Principal Accounting Officer)

   May 25, 2011

/s/ Michael A. Coke

Michael A. Coke

    Director   May 25, 2011

/s/ Thomas D. Eckert

Thomas D. Eckert

    Director   May 25, 2011

/s/ Frederick V. Malek

Frederick V. Malek

    Director   May 25, 2011

Signature

   

Title

  

Date

/s/ John T. Roberts Jr.

John T. Roberts Jr.

    Director   May 25, 2011

/s/ John H. Toole

John H. Toole

    Director   May 25, 2011

EXHIBIT INDEX

 

Exhibit
No.

   

Description

  5.1    Opinion of Hogan Lovells US LLP regarding the validity of the shares of common stock registered hereby.
23.1    Consent of Ernst & Young LLP, independent registered public accounting firm, relating to DuPont Fabros Technology, Inc.
23.2    Consent of Ernst & Young LLP, independent registered public accounting firm, relating to DuPont Fabros Technology, L.P.
23.3    Consent of Hogan Lovells US LLP (included in Exhibit 5.1).
24.1    Power of Attorney (included on signature page hereto).