As filed with the Securities and Exchange Commission on August 3, 2023
Registration No. 333-__________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
INTEVAC, INC.
(Exact name of Registrant as specified in its charter)
| Delaware | 94-3125814 | |
| (State of incorporation) | (I.R.S. Employer Identification Number) |
3560 Bassett Street
Santa Clara, California 95054
(Address, including zip code of Registrant’s principal executive offices)
2020 EQUITY INCENTIVE PLAN
2003 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
Nigel Hunton
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:
Jose F. Macias, Esq.
Erika Muhl, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
(650) 493-9300
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☒ | Smaller reporting company | ☒ | |||
| Emerging growth company | ☐ | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
PART I
INFORMATION REQUIRED IN THIS PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the equity benefit plans covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
Intevac, Inc. (the “Registrant”) hereby incorporates by reference into this Registration Statement the following documents heretofore filed with the Securities and Exchange Commission (the “Commission”):
| • | The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the Commission on February 16, 2023; |
| • | The Registrant’s Quarterly Report on Form 10-Q for the quarter ended April 1, 2023, filed with the Commission on May 4, 2023; |
| • | The Registrant’s Quarterly Report on Form 10-Q for the quarter ended July 1, 2023, filed with the Commission on August 3, 2023; |
| • | The Registrant’s Definitive Proxy Statement on Schedule 14A filed with the Commission on April 12, 2023 (solely to the extent incorporated by reference into Part III of the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022); |
| • | The Registrant’s Current Reports on Form 8-K filed with the Commission on June 13, 2023, May 31, 2023 and May 19, 2023 (as amended by the Registrant’s Current Report Form 8-K/A filed with the Commission on May 31, 2023); and |
| • | The description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form 8-A dated October 5, 1995, filed with the Commission pursuant to Section 12(g) of the Securities Exchange Act of 1934 (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description. |
In addition, all reports and documents subsequently filed with the Commission by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange 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 4. | Description of Securities. |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel. |
Not applicable.
| Item 6. | Indemnification of Directors and Officers. |
Section 145 of the Delaware General Corporation Law (“Delaware Law”) authorizes a court to award, or a corporation’s board of directors to grant, indemnity to officers, directors and other corporate agents in terms sufficiently broad to permit such indemnification under certain circumstances and subject to certain limitations. As permitted by Section 145 of Delaware Law, the Registrant’s Certificate of Incorporation and the Registrant’s Bylaws provide for indemnification of the Registrant’s directors and officers and authorize indemnification of employees and other agents to the maximum extent permitted by Delaware Law. With regard to the foregoing, the Registrant has entered into indemnification agreements with its directors and officers.
| Item 7. | Exemption from Registration Claimed. |
Not applicable.
| Item 8. | Exhibits. |
|
Exhibit |
Description | |||
| 4.1 | Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on July 23, 2007) | |||
| 4.2 | Bylaws of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on March 15, 2012) | |||
| 4.3 | 2020 Equity Incentive Plan, as amended February 15, 2023 (incorporated by reference to Appendix B to the Registrant’s Definitive Proxy Statement on Schedule 14A filed with the C0mmission on April 12, 2023) | |||
| 4.4 | 2003 Employee Stock Purchase Plan, as amended February 15, 2023 (incorporated by reference to Appendix A to the Registrant’s Definitive Proxy Statement on Schedule 14A filed with the C0mmission on April 12, 2023) | |||
| 5.1 | Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation | |||
| 23.1 | Consent of BPM LLP, Independent Registered Public Accounting Firm | |||
| 23.2 | Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in Exhibit 5.1 to this Registration Statement) | |||
| 24.1 | Power of Attorney (included as part of the signature page to his Registration Statement) | |||
| 107 | Filing Fee Table | |||
| 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 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. 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 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 paragraphs A(1)(i) and A(1)(ii) shall 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 into 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 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 Securities Act 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 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. |
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 3rd day of August, 2023.
| INTEVAC, INC. |
| /s/ James Moniz |
| James Moniz |
| Executive Vice President, Finance and Administration, |
| Chief Financial Officer, Secretary and Treasurer |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Nigel Hunton and James Moniz, 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.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the persons below in the capacities and on the dates indicated.
| Signature |
Title |
Date | ||
| /s/ Nigel Hunton Nigel Hunton |
President, Chief Executive Officer and Director (Principal Executive Officer) | August 3, 2023 | ||
| /s/ David S. Dury David S. Dury |
Chairman of the Board | August 3, 2023 | ||
| /s/ James Moniz James Moniz |
Executive Vice President, Finance and Administration, Chief Financial Officer, Secretary and Treasurer (Principal Financial and Accounting Officer) | August 3, 2023 | ||
| /s/ Kevin D. Barber Kevin D. Barber |
Director | August 3, 2023 | ||
| /s/ Dorothy D. Hayes Dorothy Hayes |
Director | August 3, 2023 | ||
| /s/ Michele F. Klein Michele F. Klein |
Director | August 3, 2023 | ||
Exhibit 5.1
August 3, 2023
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 Intevac, Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission on or about the date hereof, in connection with the registration under the Securities Act of 1933, as amended, of (i) an aggregate of 850,000 shares of the Company’s common stock, par value $0.001 per share (“Common Stock”), reserved for issuance under the Company’s 2020 Equity Incentive Plan, as amended and (ii) an aggregate of 300,000 shares of Common Stock, reserved for issuance under the Company’s 2003 Employee Stock Purchase Plan, as amended. Such shares of Common Stock are referred to herein as the “Shares” and such plans are referred to herein as the “Plans.”
As the Company’s legal counsel, we have examined the proceedings taken and are familiar with the actions proposed to be taken by the Company in connection with the proposed issuance and sale of the Shares under the Plans and pursuant to the agreements related thereto.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when issued and sold in the manner referred to in the Plans and pursuant to the agreements that accompany each grant or award under the Plans, 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. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
| Very truly yours, |
| WILSON SONSINI GOODRICH & ROSATI |
| Professional Corporation |
| /s/ WILSON SONSINI GOODRICH & ROSATI |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Intevac, Inc. of our report dated February 16, 2023, relating to the consolidated financial statements of Intevac, Inc., which appears in the Annual Report on Form 10-K of Intevac, Inc. for the year ended December 31, 2022.
/s/ BPM LLP
San Jose, California
August 3, 2023
Exhibit 107
CALCULATION OF FILING FEE TABLE
Form S-8
(Form Type)
Intevac, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
| Security Type | Security Class Title |
Fee Calculation Rule |
Amount Registered(1) |
Proposed Maximum Offering Price Per Unit |
Maximum Price |
Fee Rate |
Amount of Registration Fee | |||||||
| Equity | Common Stock, par value $0.001 per share – reserved for issuance pursuant to the 2020 Equity Incentive Plan (the “2020 Plan”) | Other(2) | 850,000 | $3.55(2) | $3,017,500 | $110.20 per $1,000,000 | $333 | |||||||
| Equity | Common Stock, par value $0.001 per share – reserved for issuance pursuant to the Registrant’s 2003 Employee Stock Purchase Plan (the “ESPP”) | Other(3) | 300,000 | $3.02(3) | $906,000 | $110.20 per $1,000,000 | $100 | |||||||
| Total Offering Amounts | 1,150,000 | $3,923,500 | $433 | |||||||||||
| Total Fee Offsets | — | |||||||||||||
| Net Fee Due | $433 | |||||||||||||
| (1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s common stock that become issuable under the 2020 Plan or the ESPP 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 that results in an increase in the number of the Registrant’s outstanding shares of common stock. |
| (2) | Estimated in accordance with Rules 457(c) and 457(h) solely for the purpose of calculating the registration fee on the basis of $3.55 per share, which represents the average of the high and low prices of the Registrant’s common stock as reported on The Nasdaq Global Select Market on July 28, 2023. |
| (3) | Estimated in accordance with Rules 457(c) and 457(h) solely for the purpose of computing the registration fee on the basis of $3.02 per share, which represents 85% of the average of the high and low prices of the Registrant’s common stock as reported on The Nasdaq Global Select on July 28, 2023. Pursuant to the ESPP, the purchase price of a share of the Registrant’s common stock shall be an amount equal to 85% of the lower of the fair market value per share of the Registrant’s common stock on (i) the participant’s entry date into the offering period or (ii) the semi-annual purchase date. |