As filed with the Securities and
Exchange Commission on September 29, 2003
SECURITIES AND EXCHANGE COMMISSION
FORM S-8
INTEVAC, INC.
Registration No. 333-_____________
REGISTRATION STATEMENT
California
94-3125814
(State of incorporation)
(I.R.S. Employer Identification Number)
3560 Bassett Street
Santa Clara, California 95054
(Address, including zip code of Registrants principal executive offices)
2003 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
Kevin Fairbairn
President and Chief Executive Officer
Intevac, Inc.
3560 Bassett Street
Santa Clara, CA 95054
(408) 986-9888
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
CALCULATION OF REGISTRATION FEE
INTEVAC, INC.
REGISTRATION STATEMENT ON FORM S-8
Herbert P. Fockler, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
(650) 493-9300
Proposed Maximum
Proposed Maximum
Amount of
Amount to be
Offering Price
Aggregate
Registration
Title of Securities to be Registered
Registered (1)
Per Share (2)
Offering Price
Fee
Common Stock, no par value,
reserved for issuance under the
Intevac, Inc. 2003 Employee Stock
Purchase Plan (the
Plan
)
108,197
$8,232
$890,678
$73
TOTAL
108,197
$890,678
$73
(1)
This Registration Statement shall
also cover any additional shares of Common Stock which become
issuable under the Plan being registered pursuant to this
Registration Statement by reason of any stock dividend, stock split,
recapitalization or any other similar transaction effected without
the receipt of consideration which results in an increase in the
number of the Registrants outstanding shares of Common Stock.
(2)
Estimated in accordance with Rule
457(h) under the Securities Act of 1933, as amended (the
1933 Act
), solely for the purpose of calculating
the registration fee. The computation is based upon the average of
the high and low sale prices of the Common Stock as reported on The
Nasdaq National Market on September 22, 2003, multiplied by 85%,
which is the percentage of the trading purchase price applicable to
purchases under the referenced Plan.
Table of Contents
PART I
INFORMATION REQUIRED IN THIS PROSPECTUS
Omitted pursuant to the instructions and provisions of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed with the Securities
and Exchange Commission (the
Commission
) by Intevac, Inc. (the
Registrant
):
In addition, all documents subsequently filed with the Commission by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act on
or after the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining unsold under
this Registration Statement, shall be deemed to be incorporated by reference in
this Registration Statement and to be part hereof from the date of filing of
such documents. Any statement contained herein or in a document 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 which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such earlier statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
Item 3.
Incorporation of Documents by Reference.
The Registrants Annual Report on Form 10-K for the
fiscal year ended December 31, 2002 filed with the Commission on
March 13, 2003 pursuant to Section 13(a) the Securities Exchange
Act of 1934, as amended (the
1934 Act
);
The Registrants Quarterly Report on Form 10-Q for the
quarter ended March 29, 2003 filed with the Commission on May 6,
2003 pursuant to Section 13(a) of the 1934 Act;
The Registrants Quarterly Report on Form 10-Q for the
quarter ended June 28, 2003 filed with the Commission on August
11, 2003 pursuant to Section 13(a) of the 1934 Act;
The Registrants Definitive Proxy Statement on Schedule
14A filed with the Commission on March 25, 2003 pursuant to
Section 14(a) of the 1934 Act;
The Registrants Current Reports on Form 8-K filed with
the Commission on March 6, 2003, April 22, 2003, May 6, 2003, May
13, 2003, May 19, 2003 and July 22, 2003 pursuant to Section 13 or
15(d) of the 1934 Act; and
The description of Registrants Common Stock contained in
the Registrants Registration Statement on Form 8-A dated October
5, 1995, filed with the Commission pursuant to Section 12(g) of
the 1934 Act, including any amendment or report filed for the
purpose of updating such description.
The information contained in the Registrants
Registration Statement on Form S-8 (File No. 333106960) filed on
July 11, 2003
The information contained in the Registrants
Current Report on Form 8-K filed on September 24, 2003.
Table of Contents
Item 4.
Description of Securities.
Not applicable.
Section 317 of the California Corporations Code authorizes a corporations
Board of Directors to grant indemnity to directors and officers in terms
sufficiently broad to permit such indemnification under certain circumstances
for liabilities (including reimbursement for expenses incurred) arising under
the 1933 Act. Article V of the Registrants Amended and Restated Articles of
Incorporation and Article VI of the Registrants Bylaws provide for
indemnification of the Registrants directors, officers and other agents to the
maximum extent permitted by the California Corporations Code. With regard to
the foregoing, the Registrant has entered into Indemnification Agreements with
its directors and officers.
Previously filed as an exhibit to the Registration Statement on Form S-8 (No.
333-106960)
A. The undersigned Registrant hereby undertakes:
II-2
II-3
Item 5.
Interests of Named Experts and Counsel.
Not applicable.
Item 6.
Indemnification of Directors and Officers.
Item 7.
Exemption from Registration Claimed.
Not applicable.
Item 8.
Exhibits.
Exhibit
Number
Description
*4.1
2003 Employee Stock Purchase Plan.
5.1
Opinion of Wilson Sonsini Goodrich & Rosati, P.C.,
with respect to the securities being registered.
23.1
Consent of Independent Auditors.
23.2
Consent of Counsel (contained in Exhibit 5.1).
24.1
Power of Attorney (see page II-3).
Item 9.
Undertakings.
Table of Contents
(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 1933 Act,
(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 thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in this 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; provided, however, that clauses (1)(i) and
(1)(ii) shall not apply if the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the
1934 Act that are incorporated by reference into this
Registration Statement;
(2)
That for the purpose of determining any liability
under the 1933 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 and
(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 Registrants 2003
Employee Stock Purchase Plan.
B.
The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the 1933 Act, each filing of the
Registrants annual report pursuant to Section 13(a) or Section 15(d)
of the 1934 Act that is incorporated by reference into 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.
C.
Insofar as indemnification for liabilities arising under the
1933 Act may be permitted to directors, officers or controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that, in the opinion of
the SEC, such indemnification is against public policy as expressed
in the 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of 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 Santa Clara, State of California, on this 26th day of September 2003.
INTEVAC, INC. | ||
By: /s/ Charles B. Eddy, III
Charles B. Eddy, III Vice President, Finance and Administration, Chief Financial Officer, Treasurer and Secretary |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Kevin Fairbairn and Charles B. Eddy, III, jointly and severally, his attorneys-in-fact, each with the power of substitution, for him or her in any and all capacities, to sign any amendments to this Registration Statement on Form S-8 and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorneys-in-fact, or their substitute or substitutes, may do or cause to be done by virtue hereof.
In accordance with the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities indicated as of September 26, 2003:
Signature | Title | |
|
|
|
/s/ Kevin Fairbairn
Kevin Fairbairn |
President and Chief Executive Officer (Principal Executive Officer) | |
/s/ Norman H. Pond
Norman H. Pond |
Chairman of the Board | |
/s/ Charles B. Eddy, III
Charles B. Eddy, III |
Vice President, Finance and Administration, Chief Financial Officer,
Treasurer and Secretary (Principal Financial and Accounting Officer) |
|
/s/ David S. Dury
David S. Dury |
Director | |
/s/ Robert D. Hempstead
Robert D. Hempstead |
Director | |
/s/ David N. Lambeth
David N. Lambeth |
Director | |
/s/ Robert Lemos
Robert Lemos |
Director | |
/s/ H. Joseph Smead
H. Joseph Smead |
Director |
II-4
INDEX TO EXHIBITS
Exhibit
Number
Description
*4.1
2003 Employee Stock Purchase Plan.
5.1
Opinion of Wilson Sonsini Goodrich & Rosati, P.C.,
with respect to the securities being registered.
23.1
Consent of Independent Auditors.
Previously filed as an exhibit to the Registration Statement on Form S-8 (No. 333-106960)
EXHIBIT 5.1
September 25, 2003
Intevac, Inc.
3560 Bassett Street
Santa Clara, California 95054
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the Registration Statement ) to be filed by you with the Securities and Exchange Commission on or about September 26, 2003 regarding the registration under the Securities Act of 1933, as amended, of an additional 108,197 shares of your Common Stock, no par value (the Shares ), reserved for issuance under your 2003 Employee Stock Purchase Plan (the Plan ). As your legal counsel, we have reviewed the actions taken by you in connection with the proposed sale and issuance of the Shares by you under the Plan. We assume that each issuance of the Shares will be made in accordance with the terms of the Plan.
It is our opinion that, upon completion of the proceedings being taken, or contemplated by us, as your counsel, to be taken, prior to the issuance of the Shares pursuant to the Registration Statement and the Plan, including the proceedings being taken in order to permit such transaction to be carried out in accordance with applicable state securities laws, the Shares, when issued and sold in the manner described in the Registration Statement and in accordance with the resolutions adopted by the Board of Directors, will be legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement, and further consent to the use of our name wherever appearing in the Registration Statement and any amendments thereto.
Very truly yours, | ||
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation |
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our reports dated January 29, 2003, accompanying the
consolidated financial statements of Intevac, Inc. appearing in the 2002 Annual
Report of the Company to its shareholders and the accompanying schedules
included in the Annual Report on Form 10-K for the year ended December 31,
2002, which are incorporated by reference in this Registration Statement on
Form S-8. We consent to the incorporation by reference in the Registration
Statement of the aforementioned reports.
GRANT THORNTON LLP
San Jose, California
September 22, 2003