S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on September 21, 2018
As filed with the Securities and Exchange Commission on September 21, 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
Veritone, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 47-1161641 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
575 Anton Blvd., Suite 100
Costa Mesa, California 92626
(Address of principal executive offices) (Zip Code)
Veritone, Inc. 2017 Stock Incentive Plan
Veritone, Inc. Employee Stock Purchase Plan
Veritone, Inc. 2018 Performance-Based Stock Incentive Plan
(Full title of the plan)
Chad Steelberg
Chief Executive Officer
Veritone, Inc.
575 Anton Blvd., Suite 100
Costa Mesa, California 92626
(Name and address of agent for service)
(888) 507-1737
(Telephone number, including area code, of agent for service)
Copies to:
| Jeffrey B. Coyne General Counsel and Secretary Veritone, Inc. 575 Anton Blvd., Suite 100 Costa Mesa, California 92626 (888) 507-1737 |
Michael A. Hedge Alexa M. Ekman K&L Gates LLP 1 Park Plaza, Twelfth Floor Irvine, California 92614 (949) 253-0900 |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company, and emerging growth company in Rule 12b2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☐ | Smaller reporting company | ☒ | |||
| Emerging growth company | ☒ | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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| Title of Each Class of Securities to be Registered |
Amount to be Registered(1) |
Proposed Maximum Offering Price Per Share |
Proposed Maximum Offering Price |
Amount of Registration Fee |
||||
| Common Stock, $0.001 par value, to be issued pursuant to the Veritone, Inc. 2017 Stock Incentive Plan |
484,766(2) | $10.25(3) | $4,968,851.50(3) | $619 | ||||
| Common Stock, $0.001 par value, to be issued pursuant to the Veritone, Inc. Employee Stock Purchase Plan |
161,588(4) | $8.71(5) | $1,407,431.48(5) | $176 | ||||
| Common Stock, $0.001 par value, to be issued pursuant to the Veritone, Inc. 2018 Performance-Based Stock Incentive Plan |
4,200,000(6) | $10.25(3) | $43,050,000.00(3) | $5,360 | ||||
| Total |
4,846,354 | | $49,426,282.98 | $6,155 | ||||
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| (1) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the Securities Act), this Registration Statement shall also cover any additional shares of common stock which become issuable under the above-named plans by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of outstanding shares of common stock of Veritone, Inc. (the Registrant). |
| (2) | Represents additional shares of the Registrants common stock reserved for future issuance under the Registrants 2017 Stock Incentive Plan (the 2017 Plan) as a result of the automatic increase in shares reserved thereunder on January 2, 2018 pursuant to the terms of the 2017 Plan. |
| (3) | Estimated in accordance with Rule 457(c) and Rule 457(h) under the Securities Act solely for the purpose of calculating the registration fee on the basis of $10.25 per share, the average of the high and low prices of the Registrants common stock as reported on The Nasdaq Global Market on September 17, 2018. |
| (4) | Represents additional shares of the Registrants common stock reserved for future issuance under the Registrants Employee Stock Purchase Plan (the ESPP) as a result of the automatic increase in shares reserved thereunder on January 2, 2018 pursuant to the terms of the ESPP. |
| (5) | Estimated in accordance with Rule 457(c) and Rule 457(h) under the Securities Act solely for the purpose of calculating the registration fee on the basis of $8.71 per share, the average of the high and low prices of the Registrants common stock as reported on The Nasdaq Global Market on September 17, 2018, multiplied by 85%, which is the percentage of the price per share applicable to purchases under the ESPP. |
| (6) | Represents shares of common stock reserved for issuance pursuant to the Registrants 2018 Performance-Based Stock Incentive Plan as of the date of this Registration Statement. |
EXPLANATORY NOTE
Veritone, Inc. (the Registrant) is filing this Registration Statement on Form S-8 with the Securities and Exchange Commission (the Commission) for the purpose of (i) registering an additional 484,766 shares of common stock under the Registrants 2017 Stock Incentive Plan (the 2017 Plan), pursuant to the provision of such plan that provides for annual automatic increases in the number of shares of the Registrants common stock, par value $0.001 per share (the Common Stock) reserved for issuance thereunder, (ii) an additional 161,588 shares of Common Stock under the Registrants Employee Stock Purchase Plan (the ESPP), pursuant to the provision of such plan that provides for annual automatic increases in the number of shares of Common Stock reserved for issuance thereunder, and (iii) registering 4,200,000 shares of Common Stock reserved for issuance pursuant to the Registrants 2018 Performance-Based Stock Incentive Plan (the 2018 Plan).
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
With respect to the 2018 Plan, 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 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 2018 Plan as specified by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
With respect to the 2017 Plan and the ESPP, the contents of the Registrants Registration Statement on Form S-8 (File No. 333-217990) relating to the 2017 Plan and the ESPP previously filed by the Registrant with the Commission on May 12, 2017 are incorporated by reference into this Registration Statement.
With respect to the 2017 Plan, the ESPP, and the 2018 Plan, the following documents filed by the Registrant with the Commission are incorporated by reference into this Registration Statement:
| (a) | the Registrants Annual Report on Form 10-K and Form 10-K/A for the fiscal year ended December 31, 2017, filed with the Commission on March 9, 2018 and April 27, 2018, respectively; |
| (b) | the Registrants Quarterly Reports on Form 10-Q for the quarters ended March 31, 2018 and June 30, 2018, filed with the Commission on May 8, 2018 and August 13, 2018, respectively; |
| (c) | the Registrants Definitive Proxy Statement on Schedule 14A, filed with the Commission on June 1, 2018; |
| (d) | the Registrants Current Reports on Form 8-K filed with the Commission on March 21, 2018, May 24, 2018, June 7, 2018, June 25, 2018, July 5, 2018, August 15, 2018, August 17, 2018, August 29, 2018, September 7, 2018 and September 10, 2018; and |
| (e) | the description of the Registrants common stock contained in our Registration Statement on Form 8-A (File No. 001-38093) filed with the Commission on May 11, 2017, including any amendment or report filed for the purpose of updating such description. |
In addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities 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. 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 other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Under no circumstances will any information filed under Items 2.02 or 7.01 of Form 8-K, and exhibits furnished on such form that relate to such items, be deemed incorporated herein by reference unless such Form 8-K expressly provides for the contrary.
| Item 4. | Description of Securities. |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel. |
Not applicable.
| Item 6. | Indemnification of Directors and Officers. |
The Registrants amended and restated certificate of incorporation and amended and restated bylaws, each as presently in effect, provides that the Registrant will indemnify its directors and officers to the fullest extent permitted under Delaware law, which prohibits the Registrants amended and restated certificate of incorporation from limiting the liability of the Registrants directors for the following: (i) any breach of the directors duty of loyalty to the Registrant or its stockholders, (ii) acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) unlawful payment of dividends or unlawful stock repurchases or redemptions, or (iv) any transaction from which the director derived an improper personal benefit.
The Registrants amended and restated certificate of incorporation and amended and restated bylaws also provide that if Delaware law is amended to authorize corporate action further eliminating or limiting the personal liability of a director, then the liability of the Registrants directors will be eliminated or limited to the fullest extent permitted by Delaware law, as so amended. This limitation of liability does not apply to liabilities arising under the federal securities laws and does not affect the availability of equitable remedies such as injunctive relief or rescission.
The Registrants amended and restated certificate of incorporation and amended and restated bylaws also provide that the Registrant shall indemnify its employees and agents to the fullest extent permitted by law. The Registrants amended and restated bylaws also permit it to secure insurance on behalf of any officer, director, employee or other agent for any liability arising out of his or her actions in this capacity, regardless of whether the Registrant would have the power to indemnify such person against such expense, liability or loss under the General Corporation Law of the State of Delaware. The Registrant has obtained directors and officers liability insurance.
The Registrant has entered into separate indemnification agreements with it directors and executive officers, in addition to indemnification provided for in the Registrants amended and restated certificate of incorporation and amended and restated bylaws. These agreements, among other things, provide for indemnification of the Registrants directors and executive officers for expenses, judgments, fines and settlement amounts incurred by this person in any action or proceeding arising out of this persons services as a director or executive officer or at the Registrants request. The Registrant believes that these provisions in its amended and restated certificate of incorporation and amended and restated bylaws and indemnification agreements are necessary to attract and retain qualified persons as directors and executive officers.
The above description of the indemnification provisions of the Registrants amended and restated certificate of incorporation and amended and restated bylaws is not complete and is qualified in its entirety by reference to these documents, each of which is filed as an exhibit to this Registration Statement.
The limitation of liability and indemnification provisions in the Registrants 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 stockholders investment may be harmed to the extent the Registrant pays the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions. Insofar as indemnification for liabilities under the Securities Act may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the Commission 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 the Registrants directors or officers as to which indemnification is being sought, nor is the Registrant 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. |
The following exhibits are filed herewith or incorporated by reference as part of this Registration Statement:
| 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 20% change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section 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 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 this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act 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 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.
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all 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 Costa Mesa, State of California on the 21st day of September, 2018.
| VERITONE, INC. | ||
| By: | /s/ Chad Steelberg |
|
| Chad Steelberg Chief Executive Officer |
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Chad Steelberg and Peter F. Collins as his or her true and lawful attorneys-in-fact and agents, with the full power of substitution, for him or her and in his or her name, place or stead, in any and all capacities, to sign any and all amendments to this registration statement (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his substitute or substitutes, 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.
| Signature |
Title |
Date |
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| /s/ Chad Steelberg |
Chief Executive Officer and | September 21, 2018 | ||
| Chad Steelberg | Chairman of the Board (Principal Executive Officer) |
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| /s/ Ryan Steelberg |
President and Director | September 21, 2018 | ||
| Ryan Steelberg | ||||
| /s/ Peter F. Collins |
Executive Vice President and | September 21, 2018 | ||
| Peter F. Collins | Chief Financial Officer (Principal Financial and Accounting Officer) |
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| /s/ Nathaniel L. Checketts |
Director | September 21, 2018 | ||
| Nathaniel L. Checketts | ||||
| /s/ Jeff P. Gehl |
Director | September 21, 2018 | ||
| Jeff P. Gehl | ||||
| /s/ G. Louis Graziadio, III |
Director | September 21, 2018 | ||
| G. Louis Graziadio, III | ||||
| /s/ Paul A. Krieger |
Director | September 21, 2018 | ||
| Paul A. Krieger | ||||
| /s/ Knute P. Kurtz |
Director | September 21, 2018 | ||
| Knute P. Kurtz | ||||
| /s/ Christopher J. Oates |
Director | September 21, 2018 | ||
| Christopher J. Oates | ||||