Form S-3 Identiv, Inc.
Table of Contents
As filed with the Securities and Exchange Commission on April 30, 2018
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Identiv, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 77-0444317 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
2201 Walnut Avenue, Suite 100
Fremont, California 94538
(949) 250-8888
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Steven Humphreys
Chief Executive Officer
IDENTIV, INC.
2201 Walnut Avenue, Suite 100
Fremont, California 94538
(949) 250-8888
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Stanley F. Pierson
Gabriella A. Lombardi
Pillsbury Winthrop Shaw Pittman LLP
2550 Hanover Street
Palo Alto, California, 94304-1115
Telephone: (650) 233-4500
Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective, as determined by market conditions and other factors.
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 number of 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, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☐ (Do not check if a smaller reporting company) | 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
|
| ||||||||
| Title of Each Class of Securities to be Registered |
Amount to be |
Proposed Maximum Offering Price Per Share(2) |
Proposed Offering Price(2) |
Amount of Registration Fee | ||||
| Common Stock, $0.001 par value per share |
629,425 shares | $3.34 | $2,102,279.50 | $261.73 | ||||
|
| ||||||||
|
| ||||||||
| (1) | Pursuant to Rule 416 under the Securities Act of 1933, as amended, the shares being registered hereunder shall be deemed to cover additional securities to be offered to prevent dilution and thus include such indeterminate number of shares of common stock, as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions. |
| (2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) under the Securities Act of 1933 based on the average of the high and low prices of the Registrant’s Common Stock on the Nasdaq Capital Market on April 27, 2018. |
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 Commission, acting pursuant to said Section 8(a), may determine.
Table of Contents
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Subject To Completion, Dated April 30, 2018
PROSPECTUS
629,425 Shares
Identiv, Inc.
Common Stock
The selling stockholders identified in this prospectus may sell up to an aggregate of 629,425 shares of our common stock, in addition to such indeterminate number of shares of our common stock as may be issuable as a result of stock splits, stock dividends or similar transactions in connection with such common stock being registered hereunder. We will not receive any of the proceeds from the sale of the shares of our common stock by the selling stockholders.
The registration of the shares of our common stock covered by this prospectus does not mean that the selling stockholders will offer or sell any of the shares of our common stock. The selling stockholders identified in this prospectus may sell the shares of our common stock covered by this prospectus in a number of different ways and at varying prices. For additional information on the possible methods of sale that may be used by the selling stockholders, you should refer to the information under the heading “Plan of Distribution” on page 3 of this prospectus.
Our common stock is listed on the Nasdaq Capital Market under the symbol “INVE.” On April 27, 2018, the last reported sale price of our common stock on the Nasdaq Capital Market was $3.31 per share.
Investing in our securities involves risks. See the section entitled “Risk Factors” included in or incorporated by reference into this prospectus and in the documents we incorporate by reference into this prospectus.
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 , 2018
Table of Contents
| Page | ||||
| 1 | ||||
| 1 | ||||
| 1 | ||||
| 1 | ||||
| 2 | ||||
| 2 | ||||
| 3 | ||||
| 5 | ||||
| 5 | ||||
| 5 | ||||
We have not authorized anyone to provide any information other than that contained or incorporated by reference in this prospectus, any applicable prospectus supplement or any free writing prospectus prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We are not making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information in this prospectus and any prospectus supplement, or incorporated by reference, is accurate only as of the dates of those documents. Our business, financial condition, results of operations and prospects may have changed since those dates.
Table of Contents
Unless the context otherwise requires, references in this prospectus to “Identiv,” “we,” “us” and “our” refer to Identiv, Inc. and its subsidiaries.
When we refer to the selling stockholders in this prospectus, we are referring to the stockholders identified in the table under the heading “Selling Stockholders” herein as well as any donees, pledgees, transferees or other successors-in-interest that received shares of our common stock after the date of this prospectus from the selling stockholders pursuant to a gift, a pledge, a partnership distribution or other transfer (other than a public sale).
Investing in our common stock involves risks. Prior to making a decision about investing in our common stock, you should carefully consider the specific factors discussed under the heading “Risk Factors” included in or incorporated by reference into this prospectus together with all of the other information contained in this prospectus or appearing in or incorporated by reference into this prospectus, including the risk factors incorporated by reference to our most recent Annual Report on Form 10-K and any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K as well as any supplement to this prospectus. The occurrence of any of these risks might cause you to lose all or part of your investment in our common stock.
Identiv is a global security technology company that secures and manages access to physical places, things and information. Global organizations in government, education, retail, transportation, healthcare and other markets rely upon our solutions. We empower them to create secure and convenient experiences in schools, government offices, factories, critical infrastructure, transportation, hospitals and virtually every type of facility and for a wide range of products.
Identiv was founded in 1990 in Munich, Germany and incorporated in 1996 under the laws of the state of Delaware. Our principal executive offices are located at 2201 Walnut Avenue, Suite 100, Fremont, California 94538, and our telephone number is (949) 250-8888. Our website address is www.identiv.com. We do not incorporate the information on, or accessible through, our website into this prospectus, and you should not consider any information on, or accessible through, our website as part of this prospectus.
When used in this prospectus, the words “expects,” “believes,” “anticipates,” “estimates,” “may,” “could,” “intends,” and similar expressions are intended to identify forward-looking statements. These statements are subject to known and unknown risks and uncertainties that could cause actual results to differ materially from those projected or otherwise implied by the forward-looking statements. These forward-looking statements speak only as of the date of this prospectus. Given these risks and uncertainties, you should not place undue reliance on these forward-looking statements. Additional cautionary statements or discussions of risks and uncertainties that could affect our results or the achievement of the expectations described in forward-looking statements may also be contained in the documents we incorporate by reference into this prospectus.
These forward-looking statements speak only as of the date of this prospectus. We expressly disclaim any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in our expectations with regard thereto or any change in events, conditions or circumstances on which any such statement is based. You should, however, review additional disclosures we make in our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K filed with the Securities and Exchange Commission, or SEC.
1
Table of Contents
We will not receive any proceeds from the sale of common stock by the selling stockholders. All proceeds from the sale of the shares of common stock will be for the accounts of the selling stockholders. See “Selling Stockholders” and “Plan of Distribution.”
The following table sets forth, to our knowledge, certain information as of April 25, 2018 regarding the beneficial ownership of our common stock by the selling stockholders and the shares being offered by each of the selling stockholders. Information with respect to beneficial ownership is based upon information obtained from the selling stockholders. Except as indicated by the footnotes below, we believe, based on the information furnished to us, that the persons and entities named in the table below have sole voting and investment power with respect to all shares of common stock that they beneficially own, subject to applicable community property laws. Information with respect to shares beneficially owned after the offering assumes the sale of all of the shares of common stock offered and no other purchases or sales of our common stock. The selling stockholders may offer and sell some, all or none of their shares.
| Shares Beneficially Owned Prior to Offering |
Number of Shares Being Offered |
Shares Beneficially Owned After Offering |
||||||||||||||||||
| Name of Selling Stockholder |
Number | Percent(1) | Number | Percent(1) | ||||||||||||||||
| Menlo Ventures X, L.P.(2) |
139,899 | * | 139,899 | — | — | |||||||||||||||
| KPCB Holdings, Inc.(3) |
109,432 | * | 109,432 | — | — | |||||||||||||||
| VantagePoint Venture Partners IV (Q), L.P.(4) |
92,228 | * | 92,228 | — | — | |||||||||||||||
| DAG Ventures II-QP, L.P.(5) |
80,680 | * | 80,680 | |||||||||||||||||
| Robert Allen Shipp |
67,768 | * | 67,768 | — | — | |||||||||||||||
| Leonard Anthony D’Orazio |
33,879 | * | 33,879 | — | — | |||||||||||||||
| Focus Ventures III, L.P.(6) |
31,518 | * | 31,518 | |||||||||||||||||
| VantagePoint Venture Partners III (Q), L.P.(4) |
22,686 | * | 22,686 | — | — | |||||||||||||||
| DAG Ventures I-N, LLC(5) |
12,845 | * | 12,845 | |||||||||||||||||
| In-Q-Tel, Inc.(7) |
10,693 | * | 10,693 | — | — | |||||||||||||||
| VantagePoint Venture Partners IV, L.P.(4) |
9,232 | * | 9,232 | — | — | |||||||||||||||
| Eagle Energy Systems Pension and Profit Sharing Plan(8) |
3,099 | * | 3,099 | — | — | |||||||||||||||
| VantagePoint Venture Partners III, L.P.(4) |
2,761 | * | 2,761 | — | — | |||||||||||||||
| MMEF X, L.P.(2) |
2,448 | * | 2,448 | — | — | |||||||||||||||
| WS Investment Company, LLC(9) |
1,344 | * | 1,344 | — | — | |||||||||||||||
| Menlo Entrepreneurs Fund X, L.P.(2) |
1,188 | * | 1,188 | — | — | |||||||||||||||
| DAG Ventures Coinvestment Fund - Quinn River II LLC(5) |
1,160 | * | 1,160 | — | — | |||||||||||||||
| Timothy J. Stevens and Leigh E. Stevens, Trustees under that certain Revocable Trust dated April 29, 2002(10) |
1,120 | * | 1,120 | — | — | |||||||||||||||
| DAG Ventures II, L.P.(5) |
991 | * | 991 | — | — | |||||||||||||||
| Janet Hudson |
816 | * | 816 | — | — | |||||||||||||||
| FV Investors III, L.P.(6) |
561 | * | 561 | |||||||||||||||||
| J. Andrew Freeman |
421 | * | 421 | — | — | |||||||||||||||
| Stephen Davalos |
348 | * | 348 | — | — | |||||||||||||||
| VantagePoint Venture Partners IV Principals Fund, L.P.(4) |
335 | * | 335 | — | — | |||||||||||||||
| DAG Ventures GP Fund II, LLC(5) |
269 | * | 269 | — | — | |||||||||||||||
| Peter Thiel(11) |
252 | * | 252 | — | — | |||||||||||||||
| The Founders Fund, LP(11) |
200 | * | 200 | — | — | |||||||||||||||
| Timothy Stevens(10) |
180 | * | 180 | — | — | |||||||||||||||
| Anshu Aggarwal |
165 | * | 165 | — | — | |||||||||||||||
| Peter S. Slocum |
155 | * | 155 | — | — | |||||||||||||||
| Heilman Family Trust U/T/A dtd 9/11/08(12) |
125 | * | 125 | — | — | |||||||||||||||
| Rex Breunsbach |
117 | * | 117 | — | — | |||||||||||||||
| Mona Bellmore |
111 | * | 111 | — | — | |||||||||||||||
| Durand Ford |
92 | * | 92 | — | — | |||||||||||||||
2
Table of Contents
| Donald Tripp |
86 | * | 86 | — | — | |||||||||||||||
| Susan Tripp |
85 | * | 85 | — | — | |||||||||||||||
| James Hudson |
71 | * | 71 | — | — | |||||||||||||||
| John E. Allen |
27 | * | 27 | — | — | |||||||||||||||
| Stephen Edward Hudson(13) |
19 | * | 19 | — | — | |||||||||||||||
| Frank Parker Hudson Jr. |
19 | * | 19 | — | — |
| * | Represents less than 1%. |
| (1) | Based on 15,172,059 shares of our common stock outstanding on April 24, 2018. |
| (2) | Douglas C. Carlisle, John W. Jarve, H.D. Montgomery, Shawn T. Carolan and Mark A. Siegel share investment and voting power with respect to the shares. The address is 2884 Sand Hill Road, Suite 100, Menlo Park, CA 94025. |
| (3) | KPCB Holdings, Inc. (“KPCB Holdings”) serves as nominee for Kleiner Perkins Caufield & Byers XI-A, L.P. and Kleiner Perkins Caufield & Byers XI-B, L.P. KPCB Holdings is managed by KPCB XI Associates, LLC and Brook Byers, John Doerr, Raymond Lane and Theodore Schlein share investment and voting power with respect to the shares held by KPCB Holdings. The address for KPCB Holdings is 2750 Sand Hill Road, Menlo Park, CA 94025. |
| (4) | Alan E. Salzman holds investment and voting power with respect to the shares. The address is 1111 Bayhill Drive, #220, San Bruno, CA 94066. |
| (5) | John J. Cadeddu and R. Thomas Goodrich share investment and voting power with respect to the shares. The address is 251 Lytton Avenue, Ste. 200, Palo Alto, CA 94301. |
| (6) | James Boettcher, Kevin McQuillan and Steven Bird, the general partners of Focus Ventures Partners III, LLC, voting as a partnership, share investment and voting power with respect to the shares. The address is 1 First Street, Suite 7, Los Altos, CA 94022. |
| (7) | Matthew Strottman holds investment and voting power with respect to the shares. The address for In-Q-Tel, Inc. is 2107 Wilson Boulevard, Suite 1100, Arlington, VA 22201. |
| (8) | Joseph P. Nolon holds investment and voting power with respect to the shares. The address for Eagle Energy Systems Pension and Profit Sharing Plan is 500 N. Walnut Rd., Kennett Square, PA 19348. |
| (9) | James Terranova holds investment and voting power with respect to the shares. The address for WS Investment Company, LLC is 650 Page Mill Road, Palo Alto, CA 94304. |
| (10) | Timothy J. Stevens and Leigh E. Stevens, as Trustees, share investment and voting power with respect to the shares held by Timothy J. Stevens and Leigh E. Stevens, Trustees under that certain Revocable Trust dated April 29, 2002. |
| (11) | Peter Theil holds investment and voting power with respect to the shares held by The Founders Fund, LP. The address for The Founders Fund, LP is One Letterman Drive, Building D, 5th Floor, San Francisco, CA 94129. |
| (12) | Terry L. Heilman and Anne Marie Heilman, as Trustees, share investment and voting power with respect to the shares. |
| (13) | Diane Cousineau Hudson, as executor of Stephen Edward Hudson’s estate, holds investment and voting power with respect to the shares. |
All of the selling stockholders received their shares of our common stock in connection with the acquisition of 3VR Security, Inc., a California corporation (“3VR”), pursuant to which we acquired all of the outstanding shares of capital stock of 3VR for a combination of shares of our common stock, cash and unsecured promissory notes. The registration statement to which this prospectus relates is being filed pursuant to a Securityholder Agreement by and between Identiv and each of the former shareholders and noteholders of 3VR and participants in 3VR’s management carve-out plan.
Transfer Agent
The transfer agent and registrar for our common stock is American Stock Transfer and Trust Company.
The selling stockholders, which as used herein includes donees, pledgees, transferees or other successors-in-interest selling shares of common stock or interests in shares of common stock received after the date of this prospectus from a selling stockholder as a gift, pledge, partnership distribution or other transfer, may, from time to time, sell, transfer or otherwise dispose of any or all of their shares of common stock or interests in shares of common stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions. These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale, or at negotiated prices.
3
Table of Contents
The selling stockholders may use any one or more of the following methods when disposing of shares or interests therein:
| • | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| • | block trades in which the broker-dealer will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction; |
| • | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
| • | an exchange distribution in accordance with the rules of the applicable exchange; |
| • | privately negotiated transactions; |
| • | underwritten transactions; |
| • | short sales effected after the date the registration statement of which this prospectus is a part is declared effective by the SEC; |
| • | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
| • | through the distribution of the common stock by any selling stockholder to its partners, members or stockholders; |
| • | broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share; |
| • | a combination of any such methods of sale; and |
| • | any other method permitted pursuant to applicable law. |
In addition, any shares covered by this prospectus that qualify for sale pursuant to Rule 144 under the Securities Act may be sold under Rule 144 rather than under this prospectus.
The selling stockholders may, from time to time, pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock, from time to time, under this prospectus, or under an amendment or supplement to this prospectus amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
In connection with the sale of our common stock or interests therein, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the common stock in the course of hedging the positions they assume. The selling stockholders may also sell shares of our common stock short and deliver these securities to close out their short positions, or loan or pledge the common stock to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The aggregate proceeds to the selling stockholders from the sale of the common stock offered by them will be the purchase price of the common stock less discounts or commissions, if any. Each of the selling stockholders reserves the right to accept and, together with their agents from time to time, to reject, in whole or in part, any proposed purchase of common stock to be made directly or through agents. We will not receive any of the proceeds from this offering.
4
Table of Contents
The selling stockholders and any underwriters, broker-dealers or agents that participate in the sale of the common stock or interests therein may be deemed to be “underwriters” within the meaning of the Securities Act. Any discounts, commissions, concessions or profit they earn on any resale of the shares may be underwriting discounts and commissions under the Securities Act. Selling stockholders who are deemed to be “underwriters” within the meaning of the Securities Act will be subject to the prospectus delivery requirements of the Securities Act. Underwriters and their controlling persons, dealers and agents may be entitled, under agreements entered into with us and the selling stockholders, to indemnification against and contribution toward specific civil liabilities, including liabilities under the Securities Act.
To the extent required, the shares of our common stock to be sold, the names of the selling stockholders, the respective purchase prices and public offering prices, the names of any agents, dealer or underwriter, and any applicable discounts, commissions, concessions or other compensation with respect to a particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement that includes this prospectus.
To facilitate the offering of the shares offered by the selling stockholders, certain persons participating in the offering may engage in transactions that stabilize, maintain or otherwise affect the price of the common stock. This may include over-allotments or short sales, which involve the sale by persons participating in the offering of more shares than were sold to them. In these circumstances, these persons would cover such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option, if any. In addition, these persons may stabilize or maintain the price of the common stock by bidding for or purchasing shares in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed if shares sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the common stock at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.
We have agreed to indemnify the selling stockholders against certain liabilities, including liabilities under the Securities Act, relating to the registration of the shares offered by this prospectus.
The validity of the common stock offered by this prospectus will be passed upon for us by Pillsbury Winthrop Shaw Pittman LLP.
The consolidated financial statements of Identiv, Inc. as of December 31, 2017 and 2016 and for each of the two years in the period ended December 31, 2017, incorporated in this Registration Statement on Form S-3 by reference to the Company’s Annual Report on Form 10-K for the year ended December 31, 2017, have been so incorporated in reliance on the report of BPM LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement on Form S-3 with the SEC under the Securities Act of 1933. This prospectus is part of the registration statement but the registration statement includes and incorporates by reference additional information and exhibits. We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy the registration statement and any other document we file with the SEC at the public reference room maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the public reference room by calling the SEC at 1-800-SEC-0330. The SEC also maintains a website that contains reports, proxy and information statements and other information regarding companies, such as ours, that file documents electronically with the SEC. The address of that website is http://www.sec.gov. The information on the SEC’s website is not part of this prospectus, and any references to this website or any other website are inactive textual references only.
5
Table of Contents
The SEC permits us to “incorporate by reference” the information contained in documents we file with the SEC, which means that we can disclose important information to you by referring you to those documents rather than by including them in this prospectus. Information that is incorporated by reference is considered to be part of this prospectus and you should read it with the same care that you read this prospectus. Later information that we file with the SEC will automatically update and supersede the information that is either contained, or incorporated by reference, in this prospectus, and will be considered to be a part of this prospectus from the date those documents are filed. We have filed with the SEC, and incorporate by reference in this prospectus:
| • | our Annual Report on Form 10-K for the year ended December 31, 2017; |
| • | our Current Reports on Form 8-K filed on January 4, 2018, February 1, 2018, February 6, 2018 (Items 1.01, 2.03 and 3.02), February 15, 2018 (Items 2.01, 2.03, 3.02 and 9.01 (except Exhibit 99.1)), February 22, 2018 and March 8, 2018 (Item 1.01); and |
| • | the description of our common stock contained in our Registration Statement on Form 8-A filed on September 5, 1997, including any amendment or report filed for the purpose of updating such description. |
We also incorporate by reference all additional documents that we file with the SEC under the terms of Section 13(a), 13(c), 14 or 15(d) of the Exchange Act that are made after the initial filing date of the registration statement of which this prospectus is a part and the effectiveness of the registration statement, as well as between the date of this prospectus and the termination of any offering of securities offered by this prospectus. We are not, however, incorporating, in each case, any documents or information that we are deemed to furnish and not file in accordance with SEC rules.
You may request a copy of any or all of the documents incorporated by reference but not delivered with this prospectus, at no cost, by writing or telephoning us at the following address and number: Investor Relations, Identiv, Inc., 2201 Walnut Avenue, Suite 100, Fremont, California 94538, telephone (949) 250-8888. We will not, however, send exhibits to those documents, unless the exhibits are specifically incorporated by reference in those documents.
We make available free of charge on our website our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and amendments to those reports, as soon as reasonably practicable after we electronically file or furnish such materials to the SEC. You may also obtain a free copy of these reports in the Investor Relations section of our website, www.identiv.com.
6
Table of Contents
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 Fremont, State of California, on April 30, 2018.
| IDENTIV, INC. | ||
| By: | /s/ Steven Humphreys | |
| Steven Humphreys | ||
| Chief Executive Officer | ||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Steven Humphreys and Sandra Wallach, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments, to this Registration Statement, and any registration statement relating to the offering covered by this Registration Statement and filed pursuant to Rule 462(b) under the Securities Act of 1933, 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, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of said attorneys in fact and agents or their 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.
| Name |
Title |
Date | ||
| /s/ Steven Humphreys Steven Humphreys |
Chief Executive Officer and Director (Principal Executive Officer) |
April 30, 2018 | ||
| /s/ Sandra Wallach Sandra Wallach |
Chief Financial Officer (Principal Financial and Accounting Officer) |
April 30, 2018 | ||
| /s/ James E. Ousley James E. Ousley |
Chairman of the Board of Directors |
April 30, 2018 | ||
| /s/ Gary Kremen Gary Kremen |
Director |
April 30, 2018 | ||
| /s/ Nina B. Shapiro Nina B. Shapiro |
Director |
April 30, 2018 | ||
Table of Contents
PART II
Information Not Required In Prospectus
Item 14. Other Expenses of Issuance and Distribution.
The following is a statement of estimated expenses in connection with the issuance and distribution of the securities being registered, other than brokerage or underwriting discounts and commissions. All expenses and all brokerage or underwriting discounts and commissions will be paid by the selling stockholders.
| SEC registration fee |
$ | 261.73 | ||
| The Nasdaq Stock Market listing fees |
(1 | ) | ||
| Transfer agent and registrar, trustee and depositary fees |
(1 | ) | ||
| Printing expenses |
(1 | ) | ||
| Legal fees and expenses |
(1 | ) | ||
| Accounting fees and expenses |
(1 | ) | ||
| Miscellaneous |
(1 | ) | ||
|
|
|
|||
| $ | (1 | ) | ||
|
|
|
| (1) | These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time. |
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware (the “DGCL”) provides for the indemnification of officers, directors, and other corporate agents in terms sufficiently broad to indemnify such persons under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933. Article VII of the Registrant’s Amended and Restated Certificate of Incorporation, Exhibit 3.1 to the Registrant’s Registration Statement on Form S-4/A (File No. 333-162618), and Article VIII of the Registrant’s Amended and Restated Bylaws, Exhibit 3.2 to the Registrant’s Quarterly Report on Form 10-Q filed on November 14, 2002, provide for indemnification of the Registrant’s directors, officers, employees and other agents to the extent and under the circumstances permitted by the DGCL. The Registrant has also entered into agreements with its directors and officers that will require the Registrant, among other things, to indemnify them against certain liabilities that may arise by reason of their status or service as directors or officers to the fullest extent not prohibited by law.
Item 16. Exhibits.
| * | Schedules and attachments have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Registrant undertakes to furnish supplemental copies of any of the omitted schedules and attachments upon request of the Securities and Exchange Commission. |
II-1
Table of Contents
Item 17. Undertakings.
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 Securities and Exchange 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 (i), (ii) and (iii) above 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 Securities and Exchange 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, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the 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.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(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)(1)(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.
II-2
Table of Contents
(5) That, for the 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.
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 any charter provision, by law or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than 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.
II-3
EXHIBIT 5.1
PILLSBURY WINTHROP SHAW PITTMAN LLP
2550 Hanover Street, Palo Alto, CA 94304-1115
April 30, 2018
Identiv, Inc.
2201 Walnut Avenue, Suite 100
Fremont, CA 94538
| Re: | Registration Statement on Form S-3 |
Ladies and Gentlemen:
We are acting as counsel for Identiv, Inc. a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-3 relating to the registration under the Securities Act of 1933 (the “Act”) of 629,425 shares of common stock, $0.001 par value per share (the “Common Stock”), of the Company, all of which are to be offered and sold by certain stockholders of the Company (the “Shares”). Such Registration Statement, as amended, is herein referred to as the “Registration Statement.”
We have reviewed and are familiar with such documents, corporate proceedings and other matters as we have considered relevant or necessary as a basis for the opinions expressed in this letter. On the basis of the foregoing, and subject to the other qualifications and limitations set forth herein, we are of the opinion that the Shares have been duly authorized and validly issued and are fully paid and nonassessable.
The opinions set forth in this letter are limited to the General Corporation Law of the State of Delaware, as in effect on the date hereof.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement and to the use of our name under the caption “Legal Matters” in the Registration Statement and in the Prospectus forming a part thereof and any supplement thereto. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ PILLSBURY WINTHROP SHAW PITTMAN LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated March 28, 2018, relating to the consolidated financial statements of Identiv, Inc., included in the Annual Report on Form 10-K for the year ended December 31, 2017, filed with the Securities and Exchange Commission. We also consent to the reference of our firm under the heading “Experts” in such Registration Statement.
/s/ BPM LLP
San Jose, California
April 30, 2018