Securities Registration: Employee Benefit Plan (s-8)
March 15 2018 - 4:29PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on March 15, 2018
Registration
No. 333-
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-8
REGISTRATION STATEMENT
Under
The
Securities Act of 1933
Tintri, Inc.
(Exact
name of Registrant as specified in its charter)
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Delaware
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26-2906978
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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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303 Ravendale Drive
Mountain View, CA 94043
(Address of principal executive offices, including zip code)
2017 Equity Incentive Plan
2017 Employee Stock Purchase Plan
(Full title of the plan)
Ken Klein
Chairman and
Chief Executive Officer
Tintri, Inc.
303 Ravendale Drive
Mountain View, CA 94043
(650)
810-8200
(Name, address and telephone number, including area code, of agent for service)
Copies to:
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Tony Jeffries
Michael Coke
Ben
Hance
Wilson Sonsini Goodrich &
Rosati, P.C.
650 Page
Mill Road
Palo Alto, California 94304
Telephone: (650)
493-9300
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Ian Halifax
Chief Financial Officer
Mike Coleman
Vice
President Legal
Tintri, Inc.
303 Ravendale Drive
Mountain View, CA 94043
Telephone: (650)
810-8200
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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 13(a) of the Exchange Act ☒
CALCULATION
OF REGISTRATION FEE
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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, $ 0.00005 par value per share:
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—2017 Equity Incentive Plan
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4,537,000 (2)
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$4.0000 (4)
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$18,148,000.00
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$2,259.43
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—2017 Employee Stock Purchase Plan
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907,000 (3)
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$3.4000 (5)
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$3,083,800.00
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$383.94
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TOTAL:
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5,444,000
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$21,231,800.00
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$2,643.37
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(1)
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Pursuant to Rule 416(a) of 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
(“
common stock
”) that become issuable under the Registrant’s 2017 Equity Incentive Plan (“
2017 Plan
”) and the Registrant’s 2017 Employee Stock Purchase Plan (“
2017 ESPP
”) by reason of any
stock dividend, stock split, recapitalization, or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of common stock.
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(2)
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Reflects an automatic increase to the number of shares of common stock reserved for issuance pursuant to future awards under the 2017 Plan, which annual increase is provided for in the 2017 Plan.
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(3)
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Reflects an automatic increase to the number of shares of common stock reserved for issuance under the 2017 ESPP, which annual increase is provided for in the 2017 ESPP.
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(4)
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Estimated in accordance with Rule 457(c) and (h) of the Securities Act solely for the purpose of calculating the registration fee on the basis of $4.00 per share, which is the average of the high and low prices of
common stock, as reported on NASDAQ, on March 14, 2018.
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(5)
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Estimated in accordance with Rule 457(c) and (h) of the Securities Act solely for the purpose of calculating the registration fee on the basis of 85% of $4.00 per share, which is the average of the high and low
prices of common stock, as reported on NASDAQ, on March 14, 2018. Pursuant to the 2017 ESPP, the purchase price of the shares of common stock reserved for issuance thereunder will be at least 85% of the lower of the fair market value of a share of
common stock on the first trading day of the offering period or on the exercise date.
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PART I
INFORMATION REQUIRED IN THE PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of Form
S-8
is omitted from
this Registration Statement on Form
S-8
(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 REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Tintri, Inc. (the “
Registrant
”) hereby incorporates by reference into this Registration Statement the following documents
previously filed with the Securities and Exchange Commission (the “
Commission
”):
(1) The Registrant’s Prospectus
dated June 29, 2017, filed with the Commission pursuant to Rule 424(b) under the Securities Act, relating to the Registration Statement on Form
S-1,
as amended (File
No. 333-218429)
(the “
Final Prospectus
”), which contains the Registrant’s audited financial statements for the latest fiscal year for which such statements have been filed;
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “
Exchange
Act
”), since the end of the fiscal year covered by the Final Prospectus referred to in (1) above (other than the portions of these documents not deemed to be filed); and
(3) The description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form
8-A
(File
No. 001-38117)
filed with the Commission on June 16, 2017, pursuant to Section 12(b) of the Exchange Act, including any amendment or report filed for
the purpose of updating such description.
All documents filed 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 to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities
then remaining unsold 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;
provided
,
however
, that documents or information deemed to have been
furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference into this Registration Statement. Any statement contained 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 subsequently filed document which also is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests
of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant’s amended and restated certificate of incorporation and amended and restated bylaws provide that we will indemnify our
directors and officers and may indemnify our employees and other agents, to the fullest extent permitted by the Delaware General Corporation Law, which prohibits the Registrant’s amended and restated certificate of incorporation from limiting
the liability of our directors for the following:
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any breach of the director’s duty of loyalty to us or to our stockholders;
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acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
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unlawful payment of dividends or unlawful stock repurchases or redemptions; and
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any transaction from which the director derived an improper personal benefit.
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If Delaware law
is amended to authorize corporate action further eliminating or limiting the personal liability of a director, then the liability of the Registrant’s directors will be eliminated or limited to the fullest extent permitted by Delaware law, as so
amended. The Registrant’s amended and restated certificate of incorporation does not eliminate a director’s duty of care and in appropriate circumstances, equitable remedies, such as injunctive or other forms of
non-monetary
relief, remain available under Delaware law. This provision also does not affect a director’s responsibilities under any other laws, such as the federal securities laws or other state or federal
laws. Under the Registrant’s amended and restated bylaws, the Registrant will also be empowered to purchase insurance on behalf of any person whom the Registrant is required or permitted to indemnify.
In addition to the indemnification required in the Registrant’s amended and restated certificate of incorporation and amended and
restated bylaws, the Registrant has entered into indemnification agreements with each of its current directors, officers and some employees. These agreements provide indemnification for certain expenses and liabilities incurred in connection with
any action, suit, proceeding or alternative dispute resolution mechanism, or hearing, inquiry or investigation that may lead to the foregoing, to which they are a party, or are threatened to be made a party, by reason of the fact that they are or
were a director, officer, employee, agent or fiduciary of the Registrant, or any of the Registrant’s subsidiaries, by reason of any action or inaction by them while serving as an officer, director, agent or fiduciary, or by reason of the fact
that they were serving at our request as a director, officer, employee, agent or fiduciary of another entity. In the case of an action or proceeding by, or in the right of, the Registrant’s company or any of its subsidiaries, no indemnification
will be provided for any claim where a court determines that the indemnified party is prohibited from receiving indemnification. The Registrant believes that these bylaw provisions and indemnification agreements are necessary to attract and retain
qualified persons as directors and officers. The Registrant also maintains directors’ and officers’ liability insurance.
The
limitation of liability and indemnification provisions in the Registrant’s amended and restated certificate of incorporation and amended and restated bylaws may discourage stockholders from bringing a lawsuit against directors for breach of
their fiduciary duties. They may also reduce the likelihood of derivative litigation against directors and officers, even though an action, if successful, might benefit the Registrant and its stockholders. A stockholder’s investment may be
harmed to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions. Insofar as the Registrant may provide indemnification for liabilities arising under the
Securities Act to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. There is no pending litigation or proceeding naming any of our directors or officers as to which indemnification is being sought, nor are we aware of any pending or threatened litigation that may result in
claims for indemnification by any director or officer.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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 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 a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in
the effective Registration Statement; and
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to such information in the Registration Statement.
Provided,
however
, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement.
(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.
B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant’s 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 plan’s 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.
C. Insofar as indemnification for
liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets
all 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 Mountain View, State of
California, on March 15, 2018.
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TINTRI, INC.
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By:
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/s/ Ken Klein
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Ken Klein
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Chairman and Chief Executive Office
r
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS
, that each person whose signature appears below hereby constitutes and appoints Ken Klein, Ian
Halifax and Michael Coleman, and each of them, as his true and lawful
attorney-in-fact
and agent with full power of substitution, for him in any and all capacities, to
sign any and all amendments to this registration statement (including post-effective amendments or any abbreviated registration statement and any amendments thereto filed pursuant to Rule 462(b) increasing the number of securities for which
registration is sought), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact,
proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as
fully for all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact,
proxy and agent, or his substitute,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Ken
Klein
Ken Klein
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Chairman and Chief Executive Officer
(Principal Executive Officer)
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March 15, 2018
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/s/ Ian
Halifax
Ian Halifax
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Chief Financial Officer
(Principal Accounting and Financial Officer)
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March 15, 2018
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/s/ John
Bolger
John
Bolger
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Director
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March 15, 2018
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/s/ Adam
Grosser
Adam Grosser
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Director
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March 15, 2018
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/s/ Kieran
Harty
Kieran
Harty
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Director
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March 15, 2018
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/s/ Christopher
Schaepe
Christopher Schaepe
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Director
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March 15, 2018
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/s/ Peter
Sonsini
Peter
Sonsini
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Director
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March 15, 2018
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