As filed with the Securities and Exchange Commission on November 12, 2021
Registration No. 333-_____
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
ITERIS, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 95-2588496 | |
| (State or other jurisdiction of incorporation or organization) |
(IRS Employer Identification No.) |
1250 Capital of Texas, Bldg. 1, Suite 330, Austin, TX 78746
(Address of principal executive offices) (Zip code)
Amended and Restated Iteris, Inc. 2016 Omnibus Incentive Plan
(Full title of the plan)
|
Douglas L. Groves Chief Financial Officer Iteris, Inc. 1250 Capital of Texas, Bldg. 1, Suite 330 Austin, TX 78746 (512) 716-0808 |
With a copy to: Steven B. Stokdyk, Esq. Latham & Watkins LLP 10250 Constellation Blvd. Suite 1100 Los Angeles, CA 90067 (213) 891-7421 |
(Name, address and telephone
number,
including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or 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 of 1934, as amended (the “Exchange Act”).
| Large accelerated filer ¨ | Accelerated filer x | |
| Non-accelerated filer ¨ | Smaller reporting company x | |
| Emerging growth company ¨ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.¨
CALCULATION OF REGISTRATION FEE
| Title of Securities to be Registered | Amount to be Registered(1) | Proposed Maximum Offering Price Per Share(2) | Proposed Maximum Aggregate Offering Price(2) | Amount of Registration Fee | ||||||||||
| Common stock, $0.10 par value, per share | 3,360,000(3) | $ | 5.46 | $ | 18,345,600 | $ | 1,700.64 | |||||||
| (1) | This Registration Statement shall also cover any additional shares of the Registrant’s common stock that become issuable by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the Registrant’s receipt of consideration which results in an increase in the number of outstanding shares of the Registrant’s common stock. |
| (2) | Estimated solely for the purpose of calculating the registration fee under Rules 457(c) and 457(h) of the Securities Act of 1933, as amended (the “Securities Act”), on the basis of the average of the high and low sales prices per share of the Registrant’s common stock on November 5, 2021, as reported by The Nasdaq Capital Market. |
| (3) | Consists of 3,360,000 additional shares reserved for issuance under the Amended and Restated Iteris, Inc. 2016 Omnibus Incentive Plan (the “2016 Plan”). Previously, 6,773,802 shares under the 2016 Plan were registered under Registration Statement No. 333-216407 and 2,400,000 shares under the 2016 Plan were registered under Registration Statement No. 333-228210. |
EXPLANATORY NOTE:
This registration statement registers the offer and sale of an additional 3,360,000 shares of common stock of Iteris, Inc. (the “Registrant”) common stock, securities of the same class for which Registration Statements on Form S-8 relating to the 2016 Plan are effective. Accordingly, the contents of the previous Registration Statements on Form S-8 filed by the Registrant with the Securities and Exchange Commission (the “Commission”) on March 2, 2017 (File No. 333-216407) and November 6, 2018 (File No. 333-228210), including periodic reports filed after the previous Registration Statements on Form S-8 to maintain current information about the Registrant, are incorporated by reference into this Registration Statement pursuant to General Instruction E to Form S-8.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part I of Form S-8 will be sent or provided to participants of the 2016 Plan as specified by Rule 428(b)(1) of the Securities Act. Such documents are not required to be filed, and are not filed, with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
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, which have been previously filed with the Commission:
| (b) | The information specifically incorporated by reference into the Registrant’s Annual Report on Form 10-K, as amended, for the year ended March 31, 2021 from Registrant’s definitive proxy statement on Schedule 14A filed with the Commission on July 27, 2021; |
| (c) | Registrant’s Quarterly Report on Form 10-Q for the quarters ended June 30, 2021 and September 30, 2021, as filed with the Commission on August 5, 2021 and November 3, 2021, respectively; |
| (d) | Registrant’s Current Reports on Form 8-K filed with the Commission on September 14, 2021, September 16, 2021, and October 22, 2021; and |
| (e) | The description of the Registrant’s common stock, par value $0.10 per share, contained in the Registrant’s Registration Statement on Form 8-A (File No. 001-08762) filed with the Commission on February 5, 2016, which was amended by Amendment No. 1 thereto filed with the Commission on October 4, 2018, including any amendment or report filed for the purpose of updating such description. |
As disclosed in the Form 10-Qs incorporated by reference, the Company underwent a re-organization that was completed in April 2021. As a result of the re-organization, the Company currently operates under a single reporting segment in the Form 10-Qs. For purposes of this registration statement on Form S-8, the Form 10-K incorporated by reference has not been recast for the retrospective application of the change in segment presentation due to the reorganization not representing a material change in the Company’s affairs.
All reports and other documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of this registration statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference into this registration statement and to be a part hereof from the date of filing of such documents. The Registrant expressly excludes from such incorporation any information furnished pursuant to Item 2.02 or Item 7.01 of any Current Report on Form 8-K. Any document or any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a subsequently filed document or a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated herein by reference modifies or supersedes such document or such statement. Any such document or 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 Certificate of Incorporation of the Registrant limits the liability of its directors to the Registrant and its stockholders for monetary damages for breach of the directors’ fiduciary duty. This provision is intended to afford the Registrant’s directors the benefit of the Delaware General Corporation Law (the “Delaware Law”), which provides that directors of a corporation will not be personally liable for monetary damages for breach of their fiduciary duties as directors, except for liability for (i) any breach of their duty of loyalty to the corporation or its stockholders, (ii) acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware Law, or (iv) any transaction from which the director derives an improper personal benefit.
The Certificate of Incorporation and Bylaws of the Registrant require indemnification of the Registrant’s directors and officers to the maximum extent permitted by Delaware Law. Section 145 of the Delaware Law authorizes indemnification by a Delaware corporation when a person is made a party to any proceeding by reason of the fact that such person is or was a director, officer, employee or agent of the corporation or was serving as a director, officer, employee or agent of another enterprise, at the request of the corporation, and if such person acted in good faith and in a manner reasonably believed by him or her to be in, or not opposed to, the best interests of the corporation. With respect to any criminal proceeding, such person must have had no reasonable cause to believe that his or her conduct was unlawful. If it is determined that the conduct of such person meets these standards, he or she may be indemnified for expenses incurred and amounts paid in such proceeding (including attorneys’ fees) if actually and reasonably incurred by him or her in connection therewith. If such a proceeding is brought by or on behalf of the Registrant, such person may be indemnified against expenses actually and reasonably incurred if he or she acted in good faith and in a manner reasonably believed by him or her to be in, or not opposed to, the best interests of the Registrant Where such person is adjudged to be liable to the Registrant, he or she is not entitled to indemnification unless and to the extent that the court allows such indemnification to such person for such expenses as the court deems proper. Where such person is successful in any such proceeding, he or she is entitled to be indemnified against expenses actually and reasonably incurred by him or her. In all other cases, indemnification is made by the Registrant upon determination by it that indemnification of such person is proper because such person has met the applicable standard of conduct.
The Registrant has also entered into contractual arrangements with its directors and officers pursuant to which such persons may be entitled to indemnity from the Registrant against certain liabilities arising from the discharge of their duties in such capacities.
The Registrant maintains an insurance policy for the benefit of its officers and directors, which may cover certain liabilities of such individuals to the Registrant and its stockholders.
| Item 7. | Exemption from Registration Claimed. |
Not Applicable.
| Item 8. | Exhibits. |
| Exhibit No. | Description | Where Located | ||
| 4.1 | Restated Certificate of Incorporation of the Registrant as filed with the Delaware Secretary of State on October 12, 2018 | Incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K as filed with the Commission on October 15, 2018 | ||
| 4.2 | Restated Bylaws of the Registrant, as amended through August 6, 2018 | Incorporated by reference to Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2018 as filed with the Commission on August 7, 2018 | ||
| 4.3 | Specimen common stock certificate | Incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form 8-A (File No. 001-08762), as filed with the Commission on December 8, 2004 | ||
| 5.1 | Opinion of Latham & Watkins LLP | Filed herewith | ||
| 23.1 | Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm | Filed herewith | ||
| 23.2 | Consent of Latham & Watkins LLP | Contained in Exhibit 5.1 filed herewith this registration statement | ||
| 24.1 | Power of Attorney | Included in the signature pages to this registration statement filed herewith | ||
| 99.1* | Amended and Restated Iteris, Inc. 2016 Omnibus Incentive Plan, as amended and restated effective September 9, 2021 | Incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K as filed with the Commission on September 16, 2021 | ||
| 99.2* | Form of Performance Stock Unit Issuance Agreement | Incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2020 as filed with the Commission on August 4, 2020 | ||
| 99.3* | Revised Form of Restricted Stock Unit Issuance Agreement | Incorporated by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2020 as filed with the Commission on August 4, 2020 | ||
| ||||
| 99.4* | Revised Form of Form of Notice of Grant of Stock Option and form of Stock Option Agreement | Incorporated by reference to Exhibit 10.3 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2020 as filed with the Commission on August 4, 2020 |
* Indicates a contract, compensatory plan or arrangement in which directors or executive officers of the Registrant are eligible to participate.
| Item 9. | Undertakings. |
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of 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;
(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, paragraphs (1)(i) and (1)(ii) of this section 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 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 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 Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Santa Ana, State of California on November 12, 2021.
| ITERIS, INC. | ||
| By: | /S/ JOE BERGERA | |
| Joe Bergera | ||
| Chief Executive Officer | ||
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned officers and directors of the Registrant do hereby constitute and appoint Joe Bergera, President and Chief Executive Officer, and Douglas L. Groves, Chief Financial Officer and Senior Vice President, Finance, and each of them, the lawful attorneys-in-fact and agents with full power and authority to do any and all acts and things and to execute any and all instruments that said attorneys and agents, and any one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms that all said attorneys and agents, or any one of them, shall 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 persons in the capacities and on the dates indicated below.
| Signature | Title | Date | ||
| President, Chief Executive Officer and Director | ||||
| /S/ JOE BERGERA | (Principal Executive Officer) | November 12, 2021 | ||
| Joe Bergera | ||||
| /S/ DOUGLAS L. GROVES |
Chief Financial Officer
and Senior Vice President, Finance |
November 12, 2021 | ||
| Douglas L. Groves | ||||
| /S/ ANJALI JOSHI | Director | November 12, 2021 | ||
| Anjali Joshi | ||||
| /S/ GERARD M. MOONEY | Director | November 12, 2021 | ||
| Gerard M. Mooney | ||||
| /S/ LAURA L. SIEGAL | Director | November 12, 2021 | ||
| Laura L. Siegal | ||||
| /S/ THOMAS L. THOMAS | Director | November 12, 2021 | ||
| Thomas L. Thomas | ||||
| /s/ dennis w. zank | Director | November 12, 2021 | ||
| Dennis W. Zank | ||||
EXHIBIT 5.1
OPINION AND CONSENT OF LATHAM & WATKINS LLP
November 12, 2021
Iteris, Inc.
1700 Carnegie Avenue, Suite 100
Santa Ana, California 92705
| Re: | Registration Statement on Form S-8; 3,360,000 shares of common stock of Iteris, Inc., $0.10 par value per share |
Ladies and Gentlemen:
We have acted as special counsel to Iteris, Inc., a Delaware corporation (the “Company”), in connection with the registration by the Company of an aggregate of 3,360,000 shares (the “Shares”) of common stock of the Company, $0.10 par value per share which may become issuable under the Company’s 2016 Omnibus Incentive Plan (as amended or restated) (the “Plan”). The Shares are included in a registration statement on Form S-8 under the Securities Act of 1933, as amended (the “Act”), filed with the Securities and Exchange Commission (the “Commission”) on November 12, 2021 (the “Registration Statement”). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or the related prospectus, other than as expressly stated herein with respect to the issue of the Shares.
As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We are opining herein as to the General Corporation Law of the State of Delaware (the “DGCL”), and we express no opinion with respect to any other laws.
Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the purchasers and have been issued by the Company for legal consideration in excess of par value in the circumstances contemplated by the Plan, assuming in each case that the individual issuances, grants or awards under the Plan are duly authorized by all necessary corporate action and duly issued, granted or awarded and exercised in accordance with the requirements of law and the Plan (and the agreements and awards duly adopted thereunder and in accordance therewith), the issuance and sale of the Shares will have been duly authorized by all necessary corporate action of the Company, and the Shares will be validly issued, fully paid and nonassessable. In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the DGCL.
This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. We consent to your filing this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
| Very truly yours, | |
| /s/ Latham & Watkins LLP |
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated June 1, 2021 relating to the financial statements of Iteris, Inc. and subsidiaries appearing in the Annual Report on Form 10-K/A of Iteris, Inc. for the fiscal year ended March 31, 2021 and our report dated June 1, 2021 relating to the effectiveness of Iteris, Inc. and subsidiaries’ internal control over financial reporting appearing in the Annual Report on Form 10-K for the fiscal year ended March 31, 2021.
| /s/ DELOITTE & TOUCHE LLP |
| Costa Mesa, CA |
| November 12, 2021 |