Form S-8 Kopin Corp

As filed with the Securities and Exchange Commission on June 6, 2018

File No. 333-            

  

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

  

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FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

  

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KOPIN CORPORATION

(Exact Name of Registrant as Specified in Its Charter)  

 

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DELAWARE		04-2833935
(State or Other Jurisdiction of Incorporation or Organization)		(I.R.S. Employer Identification No.)

125 North Drive

Westborough, MA 01581

(Address of Principal Executive Offices) (Zip Code)

 

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2010 EQUITY INCENTIVE PLAN

(Full Title of the Plan)  

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Richard A. Sneider

Chief Financial Officer

Kopin Corporation

125 North Drive

Westborough, MA 01581

(Name and Address of Agent For Service)

(508) 870-5959

Telephone Number, Including Area Code, of Agent for Service

 

 

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Copies to:

John J. Concannon, Esq.

Morgan, Lewis & Bockius LLP

One Federal Street

Boston, MA 02110

(617) 341-7700

Fax: (617) 341-7701

 

 

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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer”, “smaller reporting company” and "emerging growth company' in Rule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer		¨		Accelerated filer		x
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. ¨

 

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CALCULATION OF REGISTRATION FEE

Title of Securities To Be Registered		Amount To Be Registered (1)		Proposed Maximum Offering Price Per Share		Proposed Maximum Aggregate Offering Price (2)		Amount Of Registration Fee
2010 Equity Incentive Plan
Common Stock, $0.01 par value		2,025,150		$3.70(2)		$7,493,055		$932.89

 

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EXPLANATORY NOTE

This registration statement is being filed solely for the purpose of registering 2,025,150 additional shares of common stock, par value $.01 per share (the “Common Stock”), of Kopin Corporation (the “Company”) to be offered to participants under the Company’s 2010 Equity Incentive Plan, as amended (the “2010 Plan”). At the 2018 annual meeting of stockholders on May 9, 2018, the Company’s stockholders approved an increase in the number of authorized shares of Common Stock under the 2010 Plan by 1,000,000 shares. In addition, 200,000 shares of Common Stock that were forfeited under the Company's 2001 Equity Incentive Plan and 825,150 shares of Common Stock that were forfeited under the 2010 Plan are included in this registration statement. The maximum number of shares issuable under the 2010 Plan includes 14,139,686 shares which were previously registered with the S

ecurities and Exchange Commission (the “Commission”) on Form S-8 (File No. 333-173066 filed on March 25, 2011, File No. 333-190524 filed on August 9, 2013, Nile No. 333-217070 filed on March 31, 2017 and File No. 333-219870 filed on August 10, 2017, collectively, the “Prior Registration Statements”), plus the number of shares underlying any grants previously made under the Company’s 2001 Equity Incentive Plan, as amended, that are forfeited, canceled, or are terminated (other than by exercise) from and after the effective date of the 2010 Plan.

Pursuant to General Instruction E of Form S-8, the contents of the Prior Registration Statement are incorporated herein by reference, except as otherwise noted below.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

Item 1.	Plan Information. *

 

The document(s) containing the information specified in this Part I will be sent or given to employees as specified

by Rule 428(b)(1) (§230.428(b)(1)). Such documents need not be filed with the Commission either as part

of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 (§230.424).

These documents and the documents incorporated by reference in the registration statement pursuant to Item

3 of Part II of this Form, taken together, constitute a prospectus that meets the requirements of Section 10(a) of

the Securities Act. See Rule 428(a)(1) (§230.428(a)(1)).

Item 2.	Registrant Information and Employee Plan Annual Information. *

 

*	Information required by Part I to be contained in the Section 10(a) Prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and in accordance with the Introductory Note to Part I of Form S-8.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.	Incorporation of Documents by Reference.

The Company incorporates by reference the documents listed below and any future filings the Company will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”):

	•		Annual Report on Form 10-K for the year ended December 30, 2017 (filed on March 23, 2018); and
	•		Definitive Proxy on Schedule 14A (filed March 30, 2018);
	•		Quarterly Report on Form 10-Q for the quarter ended March 31, 2018 (filed on May 10, 2018);
	•		Current Reports on Form 8-K (filed on January 4, 2018 and May 11, 2018); and

	•		the description of the Common Stock, par value $0.01 per share, contained in the Company’s Current Report on Form 8-K filed on March 31, 2017.

In addition, all documents filed by the Company subsequent to the date of this Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities registered hereby have been sold or which deregisters all of such securities then remaining unsold, shall be incorporated by reference into this Registration Statement as of the filing date of each.

You may request a copy of these filings at no cost (other than exhibits unless those exhibits are specifically incorporated by reference herein) by writing or telephoning us at the following address:

Kopin Corporation

Attn: Investor Relations

125 North Drive

Westborough, MA 01581

(508) 870-5959

Item 4.	Description of Securities.
Not applicable.

Item 5.	Interests of Named Experts and Counsel.

The validity of the securities registered hereby is being passed upon for us by Morgan, Lewis & Bockius LLP. One or more partners or other employees of Morgan, Lewis & Bockius LLP may beneficially own shares of our Common Stock.

Item 6.	Indemnification of Directors and Officers.

Section 145 of the Delaware General Corporation Law, or “DGCL,” provides that a corporation may indemnify any persons who were, are or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful.

Section 145 of the DGCL further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against him or her and incurred by him or her in any such capacity, arising out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify him or her under Section 145 of the DGCL.

The Amended and Restated Certificate of Incorporation, as amended (the “Charter”) and the Fifth Amended and Restated By-laws (the “By-laws”) of the Company include provisions to (i) eliminate the personal liability of the Company’s directors for monetary damages resulting from breaches of their fiduciary duty to the extent permitted by Section 102(b)(7) of the DGCL and (ii) authorize the Company to indemnify its directors and officers to the fullest extent permitted by Section 145 of the DGCL, including circumstances in which indemnification is otherwise discretionary. The Company has purchased an insurance policy covering its officers and directors with respect to certain liabilities arising under the Securities Act of 1933, as amended, or otherwise.

The indemnification provisions in the Company’s Charter and By-laws may be sufficiently broad to permit indemnification of the Company’s directors and executive officers for liabilities arising under the Securities Act.

The foregoing summaries are necessarily subject to the complete text of the DGCL, Charter and the By-laws referred to above and are qualified in their entirety by reference thereto.

Item 7.	Exemption from Registration Claimed.
Not applicable.

Item 8.	Exhibits.

The following exhibits are filed as part of or incorporated by reference into this Registration Statement:

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(1)	Filed as Appendix A to our Definitive Proxy Statement on Schedule 14A filed on March 30, 2018.

**	Filed herewith.

Item 9.	Undertakings.

 

	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 (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 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.

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.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant, Kopin Corporation, 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 Westborough, Commonwealth of Massachusetts, on this 6th day of June, 2018.

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints John C.C. Fan and Richard A. Sneider, and each of them, as such person’s true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for such person and in such person’s name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) and additions to this Registration Statement on Form S-8 and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such 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, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or such person’s 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 indicated as of the 6th day of June, 2018.

EXHIBIT INDEX

 

(1)	Filed as Appendix A to our Definitive Proxy Statement on Schedule 14A filed on March 30, 2018.

**	Filed herewith.

Exhibit 5.1

June 6, 2018

Kopin Corporation

125 North Drive

Westborough, MA 01581

Re: Registration Statement on Form S-8

Ladies and Gentlemen:

This opinion is furnished in connection with the registration, pursuant to a Registration Statement on Form S-8 under the Securities Act of 1933, as amended (the “Securities Act”), to be filed with the Securities and Exchange Commission on or about June 6, 2018 (the “Registration Statement”), of an aggregate of 2,025,150 shares (the “Shares”) of common stock, par value $0.01 per share (the “Common Stock”), of Kopin Corporation, a Delaware corporation (the “Company”), all of which are or will be issuable to directors, employees and consultants of the Company as awards issued or to be issued in accordance with the terms of the Company’s 2010 Equity Incentive Plan, as amended (the “2010 Plan”).

We have acted as counsel to the Company in connection with the foregoing registration of the Shares. We have examined and relied upon originals or copies of such records, instruments, certificates, memoranda, and other documents as we have deemed necessary or advisable for purposes of this opinion and have assumed, without independent inquiry, the accuracy of those documents. In that examination, we have assumed the genuineness of all signatures, the conformity to the originals of all documents reviewed by us as copies, the authenticity and completeness of all original documents reviewed by us in original or copy form, and the legal competence of each individual executing such documents.

We further assume that all Shares issued pursuant to awards granted or to be granted pursuant to the 2010 Plan will be issued in accordance with the terms of the 2010 Plan and that the purchase price of the Shares will be greater than or equal to the par value per share of the Shares.

This opinion is limited solely to the Delaware General Corporation Law.

Based upon and subject to the foregoing, we are of the opinion that the Shares to be issued by the Company pursuant to the 2010 Plan have been duly authorized, and when issued and delivered in accordance with the terms of the 2010 Plan, will be validly issued, fully paid, and nonassessable.

We consent to the filing of a copy of this opinion as an exhibit to the Registration Statement.

Very truly yours,

/s/ Morgan, Lewis & Bockius 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 reports dated March 23, 2018, relating to the consolidated financial statements of Kopin Corporation, and the effectiveness of Kopin Corporation’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of Kopin Corporation for the year ended December 30, 2017.

/s/ Deloitte & Touche LLP

Boston, Massachusetts

June 6, 2018