Securities Registration: Employee Benefit Plan (s-8)
August 14 2017 - 5:23PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on August 14, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
EMAGIN CORPORATION
(Exact
Name of Registrant as Specified in its Charter)
Delaware
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56-1764501
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(State
or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S.
Employer Identification No.)
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eMagin
Corporation
2070
Route 52
Hopewell Junction, NY 12533
(845)
838-7900
(Address,
including zip code and telephone number, including area code, of principal executive offices)
eMagin
Corporation 2017 Stock Option and Incentive Plan
(Full
Title of the Plans)
Andrew
G. Sculley
Chief Executive Officer
eMagin Corporation
2070
Route 52
Hopewell Junction, NY 12533
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copy
to:
Jocelyn
M. Arel
Goodwin Procter LLP
100 Northern Avenue
Boston,
MA 02210
(617)
570-1000
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 ☐
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Accelerated
filer ☐
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Non-accelerated
filer ☐
(Do
not check if a smaller reporting company)
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Smaller reporting
company ☒
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Emerging
growth company ☐
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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.
☐
CALCULATION
OF REGISTRATION FEE
Title of Securities
to be Registered
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Amount
to be
Registered
(1)
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Proposed Maximum
Offering Price
per Share
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Proposed Maximum
Aggregate
Offering Price
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Amount of
Registration
Fee
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Common Stock, $0.001 par value per share
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2,000,000 shares
(2)
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$
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2.27
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(3)
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$
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5,500,000
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$
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637.45
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Total
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2,000,000 shares
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$
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2.27
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$
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5,500,000
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$
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637.45
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(1)
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Pursuant to Rule 416 under the Securities Act of 1933,
as amended (the “Securities Act”), this registration statement shall also cover any additional shares of common stock
which become issuable under the above-named plan 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 outstanding shares of
common stock of eMagin Corporation, a Delaware corporation (the “Registrant”). Pursuant to Rule 416(c) under the Securities
Act, this registration statement shall also cover an indeterminate amount of interests to be offered or sold pursuant to the employee
benefit plans described herein.
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(2)
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Represents shares of common stock reserved for future
issuance under the Registrant’s 2017 Stock Option and Incentive Plan.
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(3)
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Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(h) of the Securities Act, and based on the average of the high and low sale prices of the
Registrant’s common stock, as quoted on the NYSE American, on August 10, 2017.
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Proposed
sales to take place as soon after the effective date of the registration statement as awards are granted, exercised or distributed
under the above-named plan.
Part I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee
Plan Annual Information.*
* The information
called for in Part I of Form S-8 is not being filed with or included in this Form S-8 (by incorporation by reference or otherwise)
in accordance with the rules and regulations of the Securities and Exchange Commission (the “SEC”).
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this registration statement the following documents filed with the SEC:
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(a)
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The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2016, filed
with the SEC on March 29, 2017, which contains the Registrant’s audited financial statements for the latest fiscal year for
which such statements have been filed;
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(b)
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The Registrant’s Quarterly Reports on Form 10-Q for the quarterly period ended March 31,
2017, filed with the SEC on May 11, 2017, and for the quarterly period ended June 30, 2017, filed with the SEC on August 10, 2017,
each of which contains the Registrant’s unaudited financial statements for the latest quarter for which such statements have
been filed;
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(c)
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The Registrant’s current reports on Form 8-K filed with the SEC on May 19, 2017, May 24,
2017 and May 26, 2017; and;
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(d)
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The
description of the Registrant’s common stock contained in the Registrant’s
registration statement on Form 8-A, filed by the Registrant with the SEC under Section
12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
on May 12, 2010, including any amendments or reports filed for the purpose of updating
such description.
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All documents that the Registrant subsequently
files 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 of the shares of common stock offered have been sold or which deregisters
all of such shares then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to
be a part hereof from the date of the filing of such documents.
Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified or superseded 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 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.
Under no circumstances will any information
filed under current items 2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference unless such Form 8-K expressly
provides to the contrary.
Item
4. Description of Securities.
Not applicable.
Item
5. Interests of Named Experts and Counsel.
Not applicable.
Item
6. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation
Law, as amended (the “DGCL”), the Registrant has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities. Our Amended and Restated Certificate of Incorporation, as amended (the “Certificate of
Incorporation”), provides to the fullest extent permitted under the DGCL that our directors shall not be personally liable
to us or our shareholders for damages for breach of such director's fiduciary duty. The effect of this provision of our Certificate
of Incorporation is to eliminate our right and our shareholders’ (through shareholders’ derivative suits on behalf
of our company) right to recover damages against a director for breach of the fiduciary duty of care as a director or (including
breaches resulting from negligent or grossly negligent behavior), except under certain situations defined by statute. Our Certificate
of Incorporation and Amended and Restated By-Laws (the “By-Laws”) also provide that the Registrant shall indemnify
each director and officer to the fullest extent permitted by applicable law. Under applicable law and our By-Laws, we may only
indemnify a director or officer upon a finding that he or she acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the Registrant, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. We believe that the indemnification provisions in our Certificate
of Incorporation and By-Laws are necessary to attract and retain qualified persons as directors and officers.
Our By-Laws also provide that the Board of Directors
may also authorize the Registrant to indemnify its employees or agents, and to advance the reasonable expenses of such persons,
to the same extent, following the same determinations and upon the same conditions as are required for the indemnification of and
advancement of expenses to our directors and officers. Our By-Laws also provide that, to the extent that a person who is or was
a director, officer, employee or agent of the Registrant has been successful on the merits or otherwise in an action such person
was party to by reason of the fact that he or she was or is a director, officer, employee or agent of the Registrant, we shall
indemnify such person against expenses actually and reasonably incurred in connection therewith. As of the date of this Registration
Statement, the Board of Directors has not extended indemnification rights to persons other than directors and officers, except
with respect to indemnification of employees and agents under our By-Laws for expenses actually and reasonably incurred upon a
final judicial determination that such person has been successful on the merits or otherwise.
The Registrant has obtained a liability insurance
policy for the officers and directors that, subject to certain limitations, terms and conditions, will insure them against losses
arising from claims of wrongful acts (as defined by the policy) in their capacity as directors or officers.
Item
7. Exemption from Registration Claimed.
Not applicable.
Item
8. Exhibits.
See the Exhibit Index on the page immediately
preceding the exhibits for a list of exhibits filed as part of this registration statement, which Exhibit Index is incorporated
herein by reference.
Item
9. Undertakings.
(a) The 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 a 20% 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) herein 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 (15 U.S.C. 78m or 78o(d)) that are incorporated by reference in the 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 the 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 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.
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 Hopewell Junction, NY, on August 14, 2017.
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EMAGIN CORPORATION
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By:
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/s/ Andrew G. Sculley
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Andrew G. Sculley
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Chief Executive Officer and President
(Principal Executive Officer)
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By:
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/s/ Jeffrey P. Lucas
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Jeffrey P. Lucas
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Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
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POWER OF ATTORNEY AND SIGNATURES
KNOW ALL BY THESE PRESENT,
that each individual whose signature appears below hereby constitutes and appoints each of Andrew G. Sculley and Jeffrey P. Lucas
as such person’s true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for such
person in such person’s name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission granting unto each said attorney-in-fact and agent 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 such person might or could do in person, hereby ratifying and confirming all that any said attorney-in-fact and
agent, or any substitute or substitutes of any of them, may lawfully 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 following person in the capacities
and on the date indicated.
Name
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Title
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Date
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/s/ Andrew G. Sculley
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President, Chief Executive Officer and Director
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August 14, 2017
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Andrew G. Sculley
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(Principal Executive Officer)
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/s/ Jeffrey P. Lucas
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Chief Financial Officer
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August 14, 2017
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Jeffrey P. Lucas
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(Principal Financial and Accounting Officer)
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/s/ Christopher Brody
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Director
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August 14, 2017
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Christopher Brody
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/s/ Paul Cronson
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Director
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August 14, 2017
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Paul Cronson
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/s/ Leslie G. Polgar
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Director
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August 14, 2017
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Leslie G. Polgar
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/s/ Ellen Richstone
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Director
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August 14, 2017
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Ellen Richstone
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/s/ Stephen M. Seay
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Director
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August 14, 2017
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Stephen M. Seay
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/s/ Jill S. Wittels
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Director
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August 14, 2017
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Jill S. Wittels
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EXHIBIT INDEX
* Filed herewith.
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