As filed with the Securities and Exchange Commission on November 17, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
MICROVISION, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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91-1600822
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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6244 185
th
Avenue NE, Suite 100
Redmond, WA 98052
(425)
936-6847
(Address, including zip code, and telephone number, including area code of principal executive offices)
David J. Westgor
Vice
President, General Counsel, and Secretary
MicroVision, Inc.
6244 185
th
Avenue NE, Suite 100
Redmond, Washington 98052
(425) 936-6847
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Please
send copies of all communications to:
Joel F. Freedman
Ropes & Gray LLP
Prudential Tower
800
Boylston Street
Boston, MA 02199
(617) 951-7000
Approximate
date of commencement of proposed sale to the public:
From time to time after the effectiveness of the registration statement.
If
the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
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, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement under the earlier effective registration statement for the same offering. ☐
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. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following
box: ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General
Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box: ☐
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):
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Large accelerated filer
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☐
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Accelerated filer
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☒
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Non-accelerated filer
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☐ (Do not check if a smaller reporting company)
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Smaller reporting company
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☐
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Emerging growth company
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☐
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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 Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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Title of each class of
securities to be registered
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Amount
to be
Registered (1)(2)
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Proposed
Maximum
Offering Price (1)(2)
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Proposed
Maximum
Aggregate
Offering Price (1)(2)
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Amount of
Registration Fee (3)
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Common Stock; Preferred Stock; Warrants (4)(5)
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$60,000,000
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$60,000,000
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$7,470
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(1)
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There are being registered under this registration statement such indeterminate number of shares of Common Stock, Preferred Stock and Warrants to purchase shares of Common Stock and of Preferred Stock of the Registrant
as shall have an aggregate offering price not to exceed $60,000,000. Any securities registered under this registration statement may be sold separately or as units with other securities registered under this registration statement. The proposed
maximum offering prices per security or unit will be determined, from time to time, by the Registrant in connection with the issuance of the securities registered under this registration statement.
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(2)
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Not specified with respect to each class of securities to be registered pursuant to General Instruction II.D. of Form S-3 under the Securities Act.
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(3)
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Calculated pursuant to Rule 457(o) under the Securities Act.
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(4)
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Including such indeterminate number of shares of Preferred Stock as may from time to time be issued (i) at indeterminate prices or (ii) upon conversion or exercise of Warrants registered hereunder, to the
extent any such Warrants are, by their terms, convertible into or exercisable for Preferred Stock, respectively.
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(5)
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Including such indeterminate number of shares of Common Stock as may from time to time be issued (i) at indeterminate prices or (ii) upon conversion or exercise of Preferred Stock or Warrants registered
hereunder, to the extent any of such Warrants or shares of Preferred Stock are, by their terms, convertible into or exercisable for Common Stock, respectively.
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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 Security and Exchange Commission, acting pursuant to said section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not sell
these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where
the offer or sale is prohibited.
Subject to Completion November 17, 2017
PROSPECTUS
$60,000,000
MicroVision, Inc.
Common Stock
Preferred
Stock
Warrants
We may sell
from time to time up to $60,000,000 of our common stock, preferred stock, or warrants in one or more transactions.
We will provide
specific terms of these securities and offerings in supplements to this prospectus. You should read this prospectus and any supplement carefully before you invest.
Our common stock is traded on The NASDAQ Global Market under the symbol MVIS. On November 15, 2017, the closing price of our
common stock on The NASDAQ Global Market was $1.57 per share.
The
securities offered in this prospectus involve a high degree of risk. You should carefully consider the information under the heading
Risk Factors
set forth herein on page 1 and in our filings made with the
Securities and Exchange Commission, which are incorporated by reference in this prospectus, in determining whether to purchase our securities.
Our executive offices are located at 6244 185
th
Avenue NE, Suite 100, Redmond, Washington
98052, and our telephone number is (425) 936-6847.
Neither the
Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is
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TABLE OF CONTENTS
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in this prospectus contain forward-looking statements, within the meaning of
Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and is subject to the safe harbor created by that section. Such
statements may include, but are not limited to, projections of revenues, income or loss, capital expenditures, plans for product development and cooperative arrangements, future operations, financing needs or plans of MicroVision, as well as
assumptions relating to the foregoing. The words anticipate, believe, estimate, expect, goal, may, plan, project, will, and similar
expressions identify forward-looking statements, which speak only as of the date the statement was made.
These forward-looking statements
are not guarantees of future performance. Factors that could cause actual results to differ materially from those projected in our forward-looking statements include the following: our ability to raise additional capital when needed; market
acceptance of our technologies and products, and for products incorporating our technologies; the failure of our commercial partners to perform as expected under our agreements; our ability to identify parties interested in paying any amounts or
amounts we deem desirable for the purchase or license of intellectual property assets; our or our customers failure to perform under open purchase orders; our financial and technical resources relative to those of our competitors; our ability
to keep up with rapid technological change; government regulation of our technologies; our ability to enforce our intellectual property rights and protect our proprietary technologies; the ability to obtain additional contract awards and to develop
partnership opportunities; the timing of commercial product launches; the ability to achieve key technical milestones in key products; dependence on third parties to develop, manufacture, sell and market our products; potential product liability
claims; and other factors set forth in the section entitled Risk Factors below, and in the documents incorporated by reference into this prospectus. These factors are not intended to represent a complete list of the general or specific
factors that may affect us. It should be recognized that other factors, including general economic factors and business strategies, may be significant, now or in the future, and the factors set forth in this prospectus may affect us to a greater
extent than indicated. All forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements set forth in or incorporated into this prospectus. Except as required by
law, we undertake no obligation to update any forward-looking statement, whether as a result of new information, future events or otherwise.
RISK FACTORS
You should carefully consider the specific risks set forth under the caption Risk Factors in our most recent annual report on Form
10-K and quarterly report on Form 10-Q, each as amended or supplemented, which are incorporated by reference in this prospectus, as the same may be amended, supplemented or superseded by our subsequent quarterly or annual reports or other filings,
including filings after the date hereof, with the Securities and Exchange Commission under the Exchange Act. The risks and uncertainties we describe are not the only ones facing us. Additional risks not presently known to us or that we currently
deem immaterial may also impair our business operations. If any of these risks were to occur, our business, financial condition or results of operations would likely suffer. In that event, the trading price of our common stock could decline, and you
could lose all or part of your investment.
1
THE COMPANY
MicroVision, Inc. is a pioneer in laser beam scanning (LBS) technology that we market under our brand name PicoP
®
. We have developed our proprietary PicoP
®
scanning technology that can be adopted by our customers to create high-resolution miniature
projection and three-dimensional sensing and image capture solutions. PicoP
®
scanning technology is based on our patented expertise in micro-electrical mechanical systems (MEMS), laser diodes,
opto-mechanics, and electronics and how those elements are packaged into a small, low power scanning engine that can display, interact and sense, depending on the needs of the application. For display, the engine can project a high-quality image on
any surface (pico projection), a windshield (head-up display or HUD), or a retina (augmented reality or AR). For sensing, we use infrared (IR) lasers to capture three-dimensional data in the form of a point cloud. Interactivity uses the 3D sensing
function and the display function to project an image with which the user can interact as one would use a touch screen.
In November 2016,
we announced a growth strategy for 2017 and beyond that includes selling LBS engines to original design manufacturers (ODMs) and original equipment manufacturers (OEMs) in addition to our strategy of licensing LBS technology to licensees to offer
their own solutions. We plan to offer three scanning engines to support a wide array of applications: a small form factor display engine for consumer products, an interactive display engine for smart Internet of Things (IoT) products, and a
mid-range light detection and ranging (LiDAR) engine for autonomous machines, industrial products and robotics.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, we anticipate that the net proceeds from the sale of the securities
offered under this prospectus will be used for general corporate purposes, which may include, but are not limited to, working capital, capital expenditures, and acquisitions of other technologies. The prospectus supplement relating to specific sales
of our securities hereunder will set forth our intended use for the net proceeds we receive from the sales. Pending the application of the net proceeds, we expect to invest the proceeds in investment-grade, interest-bearing instruments or other
securities.
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RATIO OF COMBINED FIXED CHARGES AND PREFERENCE DIVIDENDS
TO EARNINGS
As we have
incurred losses in each of the periods presented below, our earnings were inadequate to cover fixed charges and preference dividends, if any, by the following amounts (in thousands):
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NINE MONTHS ENDED
SEPTEMBER 30,
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FISCAL YEAR ENDED
DECEMBER 31,
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2017
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2012
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2013
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2014
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2015
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2016
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Additional earnings required to cover fixed charges
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$
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16,382
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$
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22,693
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$
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13,178
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$
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18,120
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$
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14,542
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$
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16,472
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Our deficiency of combined fixed charges and preference dividends to earnings for each of the periods referred
to above has been computed on a consolidated basis and should be read in conjunction with the consolidated financial statements, including the notes thereto, and other information set forth in the reports filed by us with the SEC. Please refer to
Exhibit 12.1 filed with the registration statement of which this prospectus constitutes a part for additional information regarding the ratio of earnings to cover fixed charges and preference dividends, if any.
3
DESCRIPTION OF CAPITAL STOCK
Our Certificate of Incorporation, as amended, authorizes us to issue 100,000,000 shares of common stock, $0.001 par value per share, and
25,000,000 shares of preferred stock, $0.001 par value per share. As of November 15, 2017, there were 78,596,564 shares of common stock, and no shares of preferred stock, outstanding.
Common Stock.
All outstanding common stock is, and any stock issued under this prospectus will be, fully paid and nonassessable.
Subject to the rights of the holders of our outstanding preferred stock, holders of common stock:
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are entitled to any dividends validly declared;
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will share ratably in our net assets in the event of a liquidation; and
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are entitled to one vote per share.
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The common stock has no conversion rights. Holders of
common stock have no preemption, subscription, redemption, or call rights related to those shares.
American Stock Transfer &
Trust Company is the transfer agent and registrar for our common stock.
Preferred Stock.
The Board of Directors has the authority,
without further action by the shareholders, to issue shares of preferred stock in one or more series and to fix the rights, preferences, privileges and restrictions thereof, including dividend rights, conversion rights, voting rights, terms of
redemption, liquidation preferences, sinking fund terms and the number of shares constituting any series or the designation of such series. The issuance of preferred stock could adversely affect the voting power of holders of our common stock and
the likelihood that such holders will receive dividend payments and payments upon liquidation may have the effect of delaying, deferring or preventing a change in control of MicroVision, which could depress the market price of our common stock. If
we offer preferred stock, the terms of that series of preferred stock will be set forth in the prospectus supplement relating to that series.
4
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of common stock, preferred stock, warrants or units of any combination of the foregoing securities.
Each series of warrants will be issued under a warrant agreement all as set forth in the prospectus supplement or term sheet relating to the warrants offered hereby. A copy of the form of warrant agreement, including any form of warrant certificates
representing the warrants, reflecting the provisions to be included in the warrant agreements and/or warrant certificates that will be entered into with respect to particular offerings of warrants, will be filed as an exhibit to a Form 8-K to be
incorporated into the registration statement of which this prospectus forms a part prior to the issuance of any warrants.
The applicable
prospectus supplement or term sheet will describe the terms of the warrants offered thereby, any warrant agreement relating to such warrants and the warrant certificates, including but not limited to the following:
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the offering price or prices;
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the aggregate amount of securities that may be purchased upon exercise of such warrants and minimum number of warrants that are exercisable;
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the number of securities, if any, with which such warrants are being offered and the number of such warrants being offered with each security;
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the date on and after which such warrants and the related securities, if any, will be transferable separately;
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the amount of securities purchasable upon exercise of each warrant and the price at which the securities may be purchased upon such exercise, and events or conditions under which the amount of securities may be subject
to adjustment;
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the date on which the right to exercise such warrants shall commence and the date on which such right shall expire;
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the circumstances, if any, which will cause the warrants to be deemed to be automatically exercised;
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any material risk factors, if any, relating to such warrants;
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the identity of any warrant agent; and
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any other terms of such warrants.
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Prior to the exercise of any warrants, holders of such
warrants will not have any rights of holders of the securities purchasable upon such exercise, including the right to receive payments of dividends, if any, on the securities purchasable upon such exercise, statutory appraisal rights or the right to
vote such underlying securities.
Prospective purchasers of warrants should be aware that material U.S. federal income tax, accounting and
other considerations may be applicable to instruments such as warrants.
5
PLAN OF DISTRIBUTION
General.
We may sell the securities offered hereby directly to one or more purchasers, through agents, or through underwriters or
dealers designated from time to time. The distribution of securities may be effected from time to time in one or more transactions at a fixed price or prices (which may be changed from time to time), at market prices prevailing at the times of sale,
at prices related to these prevailing market prices or at negotiated prices. The applicable prospectus supplement will describe the terms of the offering of the securities, including:
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the terms of the securities to which such prospectus supplement relates;
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the name or names of any underwriters, if any;
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the purchase price of the securities and the proceeds we will receive from the sale;
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any underwriting discounts and other items constituting underwriters compensation; and
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any discounts or concessions allowed or reallowed or paid to dealers.
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Underwriters named in
the prospectus supplement, if any, are only underwriters of the securities offered with the prospectus supplement.
Sales Directly to
Purchasers.
We may enter into agreements directly with one or more purchasers. Such agreements may provide for the sale of securities at a fixed price, based on the market price of the securities or otherwise.
Use of Underwriters and Agents
. If underwriters are used in the sale of securities, they will acquire the securities for their own
accounts and may resell them from time to time in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The securities may be offered to the public through underwriting syndicates represented
by managing underwriters or by underwriters without a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all the securities offered by the prospectus supplement. Any public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may change from time to time.
Securities may be sold directly to or through agents
from time to time. Any agent involved in the offering and sale of securities will be named and any commissions paid to the agent will be described in the prospectus supplement. Unless the prospectus supplement states otherwise, any agent will act on
a best-efforts basis for the period of its appointment. Agents or underwriters may be authorized to solicit offers by certain types of institutional investors to purchase securities at the public offering price set forth in the prospectus supplement
pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. The conditions to these contracts and the commissions paid for solicitation of these contracts will be described in the prospectus
supplement. We may engage in at the market offerings only of our common stock. An at the market offering is defined in Rule 415(a)(4) under the Securities Act, as an offering of equity securities into an existing trading
market for outstanding shares of the same class at other than a fixed price.
Deemed Underwriters.
In connection with the sale of
the securities offered with this prospectus, underwriters, dealers or agents may receive compensation from us or from purchasers of the securities for whom they may act as agents, in the form of discounts, concessions or commissions. The
underwriters, dealers or agents which participate in the distribution of the securities may be deemed to be underwriters under the Securities Act and any discounts or commissions received by them and any profit on the resale of the securities
received by them may be deemed to be underwriting discounts and commissions under the Securities Act. Anyone deemed to be an underwriter under the Securities Act may be subject to statutory liabilities, including Sections 11, 12 and 17 of the
Securities Act and Rule 10b-5 under the Exchange Act.
6
Indemnification and Other Relationships
. We may provide agents and underwriters with
indemnification against certain civil liabilities, including liabilities under the Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect to such liabilities. Agents and underwriters may engage
in transactions with, or perform services for, us in the ordinary course of business.
Listing of Securities.
Except as indicated
in the applicable prospectus supplement, the securities offered hereby are not expected to be listed on a securities exchange or market, except for the common stock, which is currently listed on The NASDAQ Global Market, and any underwriters or
dealers will not be obligated to make a market in securities. We cannot predict the activity or liquidity or any trading in the securities.
7
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other information with the SEC. You may read and copy any document we file
at the SEC at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information. Our SEC filings are also available to the public from the SECs website at http://www.sec.gov.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference the information we file with them, which means that we can disclose important
information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and the information that we file later with the SEC will automatically update and supersede this
information. We incorporate by reference the documents listed below and any future filings we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the time that all securities covered by this prospectus have
been sold; provided, however, that we are not incorporating any information furnished under any of Item 2.02 or Item 7.01 (including exhibits furnished under Item 9.01 in connection with information furnished under Item 2.02 or
Item 7.01) of any current report on Form 8-K:
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Our Annual Report on Form 10-K for the fiscal year ended December 31, 2016 filed with the SEC on March 6, 2017;
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Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2017, June 30, 2017 and September 30, 2017 filed with the SEC on April 28, 2017, August 3, 2017 and November 2,
2017, respectively;
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Our Definitive Proxy Statement on Schedule 14A filed with the SEC on April 24, 2017;
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Our Current Reports on Form 8-K filed with the SEC on February 10, 2017, March 28, 2017, May 4, 2017, June 9, 2017, June 13, 2017, August 10,
2017, August 30, 2017, October 10, 2017 and November 15; and
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The description of our common stock set forth in Amendment No. 1 to our registration statement on Form SB-2 (Registration No. 333-5276-LA), including any amendment or report filed for the purpose of updating
such description, as incorporated by reference in our registration statement on Form 8-A (Registration No. 0-21221).
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We
also specifically incorporate by reference any documents filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the initial filing of this registration statement and prior to the effectiveness
of this registration statement.
You may request a copy of these filings, at no cost, by writing or telephoning us at the following
address:
MicroVision, Inc.
6244 185th Avenue NE, Suite 100
Redmond, Washington 98052
Attention: Investor Relations
(425) 936-6847
This prospectus
is part of a registration statement that we have filed with the SEC. You should rely only on the information or representations provided in this prospectus. We have not authorized anyone to provide you with different information. We are not making
an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus is accurate as of any date other than the date on the front of the document.
8
LEGAL MATTERS
For the purpose of this offering, Ropes & Gray LLP, Boston, Massachusetts, is giving its opinion on the validity of the securities
offered hereby.
EXPERTS
Our consolidated financial statements appearing in our Annual Report on Form 10-K for the year ended December 31, 2016, and the
effectiveness of our internal control over financial reporting as of December 31, 2016, have been audited by Moss Adams LLP, an independent registered public accounting firm, as stated in their reports, which are incorporated herein by
reference. Such consolidated financial statements have been so incorporated in reliance upon the report of such firm (which report expresses an unqualified opinion and includes an explanatory paragraph regarding a going concern emphasis) given upon
their authority as experts in accounting and auditing.
9
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Distribution
The following table sets forth the estimated expenses payable by us in connection with the sale and distribution of the securities registered
hereby, other than underwriting discounts or commissions. All amounts are estimates except for the SEC registration fee.
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SEC Registration Fee
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$
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7,470
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Blue Sky Fees and Expenses
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*
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Legal Fees and Expenses
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*
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Printing Expenses
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*
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Accounting Fees and Expenses
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*
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Miscellaneous
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*
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Total Expenses
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$
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*
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*
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These fees will be calculated at the time of sale and cannot be estimated at this time.
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Item 15.
Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (DGCL) provides that a
corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or
in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action,
suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe the persons conduct was unlawful. Section 145 further provides that a corporation similarly may indemnify any such person serving in any such capacity who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor, against expenses actually and reasonably incurred in connection with the defense or settlement of such action or suit if the person acted
in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or such other court in which such action or suit was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section 102(b)(7) of the DGCL permits a corporation to include in its certificate of incorporation a provision eliminating or limiting
the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any
breach of the directors duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the
DGCL (relating to unlawful payment of dividends and unlawful stock purchase and redemption) or (iv) for any transaction from which the director derived an improper personal benefit.
The Registrants Certificate provides that the Companys Directors shall not be liable to the Registrant or its stockholders for
monetary damages for breach of fiduciary duty as a director except to the extent that exculpation from liabilities is not permitted under the DGCL as in effect at the time such liability is determined. The Registrants Certificate further
provides that the Registrant shall indemnify its directors and officers to the fullest extent permitted by the DGCL.
II-1
The Company has a liability insurance policy in effect which covers certain claims against any
officer or director of the Company by reason of certain breaches of duty, neglect, errors or omissions committed by such person in his or her capacity as an officer or director.
For the undertaking with respect to indemnification, see Item 17 herein.
Item 16. Exhibits
Item 17. Undertakings
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of
the registrants annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) 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.
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 of 1933;
(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:
(A) Paragraphs (l)(i) and (l)(ii) do not apply if the registration statement is on Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement; and
(B) Paragraphs (l)(i), (l)(ii) and (l)(iii) do not apply if the
registration statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is
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contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(C)
Provided further, however,
that paragraphs (l)(i) and (l)(ii) do not apply if the registration statement is for an
offering of asset-backed securities on Form S-l or Form S-3, and the information required to be included in a post-effective amendment is provided pursuant to Item 1100(c) of Regulation AB.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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.
(4) If the registrant is a foreign private issuer, to file a post-effective amendment to the registration
statement to include any financial statements required by Item 8.A of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the
Act need not be furnished,
provided
that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial
statements and information required by Section 10(a)(3) of the Act or Rule 3-19 of this chapter if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant
to Section 13 or Section15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3.
(5) That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) If the registrant is
relying on Rule 430B:
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of
the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in
reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(l)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included
in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
Provided, however,
that no statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to
such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; or
(ii) If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration
statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first
used after effectiveness.
Provided, however,
that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
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(6) That, for the purpose of determining liability of the registrant under the Securities Act of
1933 to any purchaser in the initial distribution of securities:
The undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or
referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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 provisions set forth in Item 15 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 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 Act and will be governed by the final adjudication of such
issue.
The undersigned registrant hereby undertakes that:
(i) 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 the 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 the
registration statement as of the time it was declared effective.
(ii) 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.
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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 of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Redmond, state of Washington, on the 17th day of November, 2017.
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MICROVISION, INC.
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By:
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/s/ David J. Westgor
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Name:
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David J. Westgor
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Title:
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Vice President, General Counsel & Secretary
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Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the
following persons in the capacities indicated below on the 17th day of November, 2017.
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Signature
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Title
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/s/ Perry Mulligan
Perry Mulligan
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Chief Executive Officer and Director
(Principal Executive Officer)
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/s/ Stephen P. Holt
Stephen P. Holt
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Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
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/s/ *
Richard P. Carlile
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Director
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/s/ *
Yalon Farhi
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Director
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/s/ *
Slade Gorton
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Director
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/s/ *
Bernee D.L. Strom
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Director
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/s/ *
Brian Turner
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Director
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/s/ *
Thomas M. Walker
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Director
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*By: /s/
David J. Westgor
Attorney-in-Fact
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