As
filed with the Securities and Exchange Commission on July 30, 2021 Registration No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INTELLICHECK,
INC.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
11-3234779 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(I.R.S.
Employer
Identification
No.) |
200
Broadhollow Road, Suite 207, Melville, NY 11747
(Address
of principal executive offices, including zip code)
Intellicheck,
Inc. 2015 Omnibus Incentive Plan
(Full
title of plan)
Brian
Lewis
Chief
Executive Officer
Intellicheck,
Inc.
200
Broadhollow Road, Suite 207
Melville,
NY 11747
(516)
992-1900
(Name,
address and telephone number, including area code, of agent for service)
Copy
to:
Christopher
H. Cunningham
K&L
Gates LLP
925
Fourth Avenue, Suite 2900
Seattle,
Washington 98104
(206)
370-7639
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or an emerging growth
company. See the definitions of “large accelerated filer,” “accelerated filer,” and “emerging growth company”
in Rule 12b-2 of the Exchange Act.
| Large
accelerated filer |
[ ] |
Accelerated
filer |
[ ] |
| Non-accelerated
filer |
[X] |
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 Each Class 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 (2) | |
| Common Stock | |
| 736,000 | | |
$ | 8.355 | | |
$ | 6,149,280 | | |
$ | 670.89 | |
| (1) |
Pursuant
to Rule 416(a), includes an indeterminate number of additional shares that may be necessary to adjust the number of shares reserved
for issuance pursuant to the plans as the result of any future stock split, stock dividend or similar adjustment of the registrant’s
outstanding common stock. |
| |
|
| (2) |
Pursuant
to Rule 457(h) and Rule 457(c), the offering price is estimated solely for the purpose of calculating the registration fee. The proposed
maximum offering price per share is estimated to be $6,149,280, based on the average of the high sales price ($8.50) and the low
sales price ($8.21) per share of the registrant’s common stock as reported by The NASDAQ Stock Market LLC on July 28, 2021. |
EXPLANATORY
NOTE
Intellicheck,
Inc. (the “Company”) is filing this registration statement on Form S-8 to register 736,000 additional shares of the Company’s
common stock authorized for issuance under the Intellicheck, Inc. 2015 Omnibus Incentive Plan, as amended (the “Incentive Plan”),
which was approved by the shareholders of the Company at its annual meeting on May 5, 2021. The Incentive Plan is an amendment of the
Intellicheck, Inc. 2015 Incentive Plan with respect to which the Company filed a registration statement on Form S-8 (SEC File Number
333- 231781) with the Securities and Exchange Commission (the “Commission”) on May 28, 2019, as well as Form S-8 (SEC File
Number: 333-204308) on May 19, 2015, as well as Form S-8 (333-211298) on May 11, 2016 with respect to the addition of 1,000,000 shares,
as well as Form S-8 (333-238627) on May 22, 2020 with respect to the addition of 500,000 shares (together, the “Prior Incentive
Plan Registration Statements”). In accordance with General Instruction E of Form S-8, the contents of the Prior Incentive Plan
Registration Statement, including any amendments thereto or filings incorporated therein, are incorporated by reference into this registration
statement to the extent not otherwise amended or superseded by the contents hereof.
PART
II
INFORMATION
REQUIRED IN THIS REGISTRATION STATEMENT
Item
3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The
following documents filed by the Company with the Commission are hereby incorporated by reference in this Registration Statement:
(a)
The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed with the Commission on March 29, 2021,
which contains audited financial statements for the most recent fiscal year for which such statements have been filed;
(b)
All other reports filed by the Company 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 Annual Report on Form 10-K referred to in paragraph (a) above (excluding
any documents or portions of such documents that are furnished under Item 2.02 or Item 7.01 of a current report on Form 8-K and any exhibits
included with such Items); and
(c)
The description of the Company’s common stock contained in the Registration Statement on Form 8-A, filed on November 15, 1999,
under Section 12(g) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description.
All
documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof (excluding any
documents or portions of such documents that are furnished under Item 2.02 or Item 7.01 of a current report on Form 8-K and any exhibits
included with such Items), and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters the securities offered hereby then remaining unsold, shall also be deemed to be incorporated by reference
into this Registration Statement and to be a part hereof commencing on the respective dates on which such documents are filed.
Any
statement contained in this Registration Statement or in a document incorporated or deemed to be incorporated by reference in this Registration
Statement will be deemed to be modified or superseded 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 in this Registration Statement modifies or supersedes that statement.
Any statement so modified or superseded will 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.
Section
102(b)(7) of the Delaware General Corporation Law (the “DGCL”) permits a Delaware corporation, in its certificate of incorporation,
to limit or eliminate, subject to certain statutory limitations, the liability of a director to the corporation or its stockholders for
monetary damages for breaches of fiduciary duty, except for liability (i) for any breach of the director’s duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit.
Article eight of the Registrant’s Certificate of Incorporation, as amended, provides that no director of the Registrant shall be
personally liable to the Registrant or its stockholders in accordance with the foregoing provisions of Section 102(b)(7).
Under
Section 145 of the DGCL, a Delaware corporation has the power to indemnify directors and officers under certain prescribed circumstances
and, subject to certain limitations, against certain costs and expenses, including attorneys’ fees, actually and reasonably incurred
in connection with any action, suit or proceeding, whether civil, criminal, administrative or investigative, to which any of them is
a party by reason of his being a director or officer of the corporation if it is determined that he or she acted in accordance with the
applicable standard of conduct set forth in such statutory provision. Article nine of the Registrant’s Certificate of Incorporation,
as amended, provides that the Registrant will, to the fullest extent permitted by the provisions of Section 145 of the DGCL, indemnify
any and all persons whom it shall have power to indemnify under said section from and against any and all of the expenses, liabilities,
or other matters referred to in or covered by said section, and the indemnification provided for herein shall not be deemed exclusive
of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors
or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue
as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
The
Registrant has purchased directors’ and officers’ liability insurance covering certain liabilities which may be incurred
by the officers and directors of the Registrant in connection with the performance of their duties.
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;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration Statement;
provided,
however, that paragraphs (1)(i) and (1)(ii) above do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that
are incorporated by reference in this 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 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefits plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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 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, the Company 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 Melville, State of New York, on July 30, 2021.
| |
INTELLICHECK, INC. |
| |
|
|
| |
By: |
/s/
Bryan Lewis |
| |
Name: |
Bryan
Lewis |
| |
|
Chief
Executive Officer |
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.
| /s/
Bryan Lewis |
|
|
|
July
30, 2021 |
| Bryan
Lewis |
|
Chief
Executive Officer and Director
(Principal
Executive Officer) |
|
|
| |
|
|
|
|
| /s/
Bill White |
|
|
|
|
| Bill
White |
|
Chief
Financial and Chief Operating Officer
(Principal
Financial and Accounting Officer) |
|
July
30, 2021 |
| |
|
|
|
|
| /s/
Guy L. Smith |
|
|
|
|
| Guy
L. Smith |
|
Chairman
and Director |
|
July
30, 2021 |
| |
|
|
|
|
| |
|
|
|
|
| Lt.
Gen. Emil R. Bedard |
|
Director |
|
July
30, 2021 |
| |
|
|
|
|
| |
|
|
|
|
| William
P. Georges |
|
Director |
|
July
30, 2021 |
| |
|
|
|
|
| /s/
Amelia L. Ruzzo |
|
|
|
|
| Amelia
L. Ruzzo |
|
Director |
|
July
30, 2021 |
| |
|
|
|
|
| /s/
David E. Ullman |
|
|
|
|
| David
E. Ullman |
|
Director |
|
July
30, 2021 |
| |
|
|
|
|
| |
|
|
|
|
| Dylan
Glenn |
|
Director |
|
July
30, 2021 |
| |
|
|
|
|
| /s/
Jack A. Davis |
|
|
|
|
| Jack
A. Davis |
|
Director |
|
July
30, 2021 |
INDEX
TO EXHIBITS
