Amendment #3 to Form S-1

As filed with the Securities and Exchange Commission on October 14, 2015

Registration No. 333-206940

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Amendment No. 3

To

FORM S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

ADESTO TECHNOLOGIES CORPORATION

(Exact name of Registrant as specified in its charter)

 

 

 

Delaware   3674   16-1755067

(State or other jurisdiction of

incorporation or organization)

 

(Primary standard industrial

classification code number)

 

(I.R.S. employer

identification no.)

 

 

1250 Borregas Avenue

Sunnyvale, CA 94089

(408) 400-0578

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

 

 

Narbeh Derhacobian

President and Chief Executive Officer

Adesto Technologies Corporation

1250 Borregas Avenue

Sunnyvale, CA 94089

(408) 400-0578

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

 

Mark A. Leahy, Esq.

William L. Hughes, Esq.

Fenwick & West LLP

801 California Street

Mountain View, CA 94041

(650) 988-8500

 

Jorge del Calvo, Esq.

Stanton D. Wong, Esq.

Gabriella Lombardi, Esq.

Pillsbury Winthrop Shaw Pittman LLP

2550 Hanover Street

Palo Alto, CA 94304

(650) 233-4500

 

 

Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement.

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 (the “Securities Act”), 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, 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 post-effective amendment filed pursuant to Rule 462(d) 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.  ¨

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” and “smaller reporting company” in Rule 12b-2 of the Securities Exchange Act of 1934. (Check one):

 

Large accelerated filer   ¨    Accelerated filer   ¨
Non-accelerated filer   x  (Do not check if a smaller reporting company)    Smaller reporting company   ¨

 

 

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 that 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.

 

 

 


Explanatory Note

This Amendment No. 3 to the Registration Statement is being submitted solely for the purpose of submitting Exhibit 5.01 and amending the disclosures in Item 16 of Part II of the Registration Statement. No changes or additions are being made hereby to the Prospectus constituting Part I of the Registration Statement (not included herein) or to Items 13, 14, 15 or 17 of Part II of the Registration Statement.


PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

ITEM 13. Other Expenses of Issuance and Distribution.

The following table sets forth the costs and expenses to be paid by the Registrant in connection with the sale of the shares of common stock being registered hereby. All amounts are estimates except for the SEC registration fee, the FINRA filing fee and the NASDAQ listing fee.

 

SEC registration fee

   $ 6,473   

FINRA filing fee

     8,987   

NASDAQ listing fee

     150,000   

Printing and engraving

     250,000   

Legal fees and expenses

     1,300,000   

Accounting fees and expenses

     400,000   

Road show expenses

     25,000   

Blue sky fees and expenses

     15,000   

Transfer agent and registrar fees and expenses

     15,000   

Miscellaneous

     329,540   
  

 

 

 

Total

   $ 2,500,000   
  

 

 

 

ITEM 14. Indemnification of Directors and Officers.

Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers under certain circumstances and subject to certain limitations. The terms of Section 145 of the Delaware General Corporation Law are sufficiently broad to permit indemnification under certain circumstances for liabilities, including reimbursement of expenses incurred, arising under the Securities Act of 1933, as amended, or Securities Act.

As permitted by the Delaware General Corporation Law, the Registrant’s restated certificate of incorporation contains provisions that eliminate the personal liability of its directors for monetary damages for any breach of fiduciary duties as a director, except for liability:

 

    for any breach of the director’s duty of loyalty to the Registrant or its stockholders;

 

    for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;

 

    under Section 174 of the Delaware General Corporation Law (regarding unlawful dividends and stock purchases); or

 

    for any transaction from which the director derived an improper personal benefit.

As permitted by the Delaware General Corporation Law, the Registrant’s amended and restated bylaws provide that:

 

    the Registrant is required to indemnify its directors and officers to the fullest extent permitted by the Delaware General Corporation Law, subject to limited exceptions;

 

    the Registrant may indemnify its other employees and agents as set forth in the Delaware General Corporation Law;

 

    the Registrant is required to advance expenses, as incurred, to its directors and officers in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to limited exceptions; and

 

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    the rights conferred in the bylaws are not exclusive.

Prior to the closing of the offering that is the subject of this Registration Statement, the Registrant intends to enter into indemnification agreements with each of its current directors and executive officers to provide these directors and executive officers additional contractual assurances regarding the scope of the indemnification set forth in the Registrant’s restated certificate of incorporation and amended and restated bylaws and to provide additional procedural protections. At present, there is no pending litigation or proceeding involving a director, executive officer or employee of the Registrant for which indemnification is sought. Reference is also made to Section 5 of the Underwriting Agreement, which provides for the indemnification of executive officers, directors and controlling persons of the Registrant against certain liabilities. The indemnification provisions in the Registrant’s restated certificate of incorporation and amended and restated bylaws and the indemnification agreements entered into or to be entered into between the Registrant and each of its directors and executive officers may be sufficiently broad to permit indemnification of the Registrant’s directors and executive officers for liabilities arising under the Securities Act.

The Registrant has directors’ and officers’ liability insurance for securities matters.

In addition, Messrs. Andreev and Crandell are indemnified by their employers with regard to serving on the Registrant’s board of directors.

Reference is made to the following documents filed as exhibits to this Registration Statement regarding relevant indemnification provisions described above and elsewhere herein:

 

Exhibit Document

   Number  

Form of Underwriting Agreement

     1.01   

Form of Restated Certificate of Incorporation of the Registrant

     3.02   

Form of Amended and Restated Bylaws of the Registrant

     3.04   

Amended and Restated Investors’ Rights Agreement by and among the Registrant and the preferred stockholders of the Registrant

     4.02   

Form of Indemnification Agreement

     10.01   

ITEM 15. Recent Sales of Unregistered Securities.

Since January 1, 2012, the Registrant has issued and sold the following securities:

 

  1. Between January 1, 2012 and September 30, 2015, the Registrant granted options to employees, consultants and directors to purchase an aggregate of 545,786 shares of common stock under its 2007 Equity Incentive Plan.

 

  2. Between January 1, 2012 and September 30, 2015, the Registrant issued 30,690 shares of common stock to its employees, directors and consultants upon exercise of options granted by it under its 2007 Equity Incentive Plan, with exercise prices ranging from $1.65 to $3.30 per share, for an aggregate purchase price of $53,548.60.

 

  3. In March 2012, the Registrant issued a warrant to purchase 86,580 shares of the Registrant’s Series C convertible preferred stock to a foundry partner, with an exercise price of $23.10 per share. Of these, 64,935 shares were exercised in 2012 and the remaining 21,645 shares were exercised in September 2013, in conjunction with a release of a liability.

 

  4. In August 2012, the Registrant sold 446,565 shares of its Series D convertible preferred stock to twelve accredited investors at a per share price of $31.35, for an aggregate purchase price of approximately $14,000,000.

 

  5. In September 2012, March 2013 and June 2013, the Registrant issued warrants to purchase an aggregate of 71,769 shares of the Registrant’s Series D convertible preferred stock to a commercial lender, with an exercise price of $31.35 per share.

 

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  6. Between January and February 2013, the Registrant issued convertible notes in an aggregate principal amount of $5,000,000 to twelve accredited investors.

 

  7. In August 2013, the Registrant sold 222,668 shares of its Series D-1 convertible preferred stock to twelve accredited investors and 526,799 shares of its Series E convertible preferred stock to ten accredited investors, in each case at a per share price of $23.5125, for an aggregate purchase price of approximately $17,622,000, which included the conversion in full of the convertible notes described in item 6 above.

 

  8. In October 2014, the Registrant issued a warrant to purchase 1,488 shares of the Registrant’s Series E convertible preferred stock to a commercial lender, with an exercise price of $23.5125 per share.

 

  9. In April 2015, the Registrant issued a warrant to purchase 31,897 shares of the Registrant’s Series E convertible preferred stock to a commercial lender, with an exercise price of $23.5125 per share.

ITEM 16. Exhibits and Financial Statement Schedules.

(a) Exhibits.

 

Exhibit
Number

  

Exhibit Title

  1.01*    Form of Underwriting Agreement.
  3.01*    Form of Restated Certificate of Incorporation of the Registrant, to be effective immediately upon the Registrant’s reincorporation in Delaware prior to this offering.
  3.02*    Form of Restated Certificate of Incorporation of the Registrant, to be effective upon the closing of this offering.
  3.03*    Bylaws of the Registrant, as currently in effect.
  3.04*    Form of Amended and Restated Bylaws of the Registrant, to be effective upon closing of this offering.
  4.01*    Amended and Restated Investors’ Rights Agreement by and among the Registrant and the preferred stockholders of the Registrant dated August 19, 2013.
  5.01    Opinion of Fenwick & West LLP regarding the legality of the securities being registered.
10.01*    Form of Indemnity Agreement.
10.02*    2007 Equity Incentive Plan and form of option grant.
10.03*    2015 Equity Incentive Plan and forms of equity awards.
10.04*    2015 Employee Stock Purchase Plan
10.05*   

Standard Industrial/Commercial Multi-Tenant Lease by and between the Registrant and DeGuigne Ventures, LLC dated May 3, 2011.

10.06†*    Technology License Agreement, as amended, by and between the Registrant and Axon Technologies Corporation, dated January 15, 2007.
10.07†*    Manufacturing Agreement by and between the Registrant and Altis Semiconductor dated September 28, 2012.
10.08*    Amended and Restated Employment Agreement, by and between the Registrant and Narbeh Derhacobian, dated August 16, 2013.
10.09*    Offer Letter, dated May 30, 2013, by and between the Registrant and Ron Shelton.
10.10*    Amended and Restated Offer of Employment, dated August 16, 2013, between the Registrant and Shane Hollmer.

 

II-3


Exhibit
Number

  

Exhibit Title

10.11†*    Credit Agreement, dated April 30, 2015, among the Registrant, Artemis Acquisition LLC and Opus Bank
10.12†*    Cell Library License Agreement by and between the Registrant and Atmel Corporation, dated September 28, 2012.
10.13†*    Process Technology and IP License Agreement by and between the Registrant and Atmel Corporation, dated September 28, 2012.
10.14*    Commercial Sublease by and between the Registrant and eGain Corporation, dated May 18, 2015
23.01    Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02*    Consent of Burr Pilger Mayer, Inc., independent registered public accounting firm.
24.01*    Power of Attorney.

 

* Previously filed.
Registrant has omitted portions of the referenced exhibit and filed such exhibit separately with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 promulgated under the Securities Act.

(b) Financial Statement Schedules.

All financial statement schedules are omitted because they are not applicable or the information is included in the Registrant’s consolidated financial statements or related notes.

ITEM 17. Undertakings.

The undersigned Registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to provisions described in Item 14 above, 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 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.

The undersigned Registrant hereby undertakes that:

(1) for purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.

(2) for the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus 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.

 

II-4


SIGNATURES

Pursuant to the requirements of the Securities Act, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Sunnyvale, State of California, on October 14, 2015.

 

ADESTO TECHNOLOGIES CORPORATION
By:  

/s/ Narbeh Derhacobian

 

Narbeh Derhacobian

President and Chief Executive Officer

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the date indicated:

 

Name

  

Title

 

Date

Principal Executive Officer:

 

    

/s/ Narbeh Derhacobian

Narbeh Derhacobian

   President, Chief Executive Officer and Director   October 14, 2015

Principal Financial Officer and Principal Accounting Officer:

 

    

/s/ Ron Shelton

Ron Shelton

   Chief Financial Officer   October 14, 2015

Additional Directors:

 

    

*

Alexei Andreev

   Director   October 14, 2015

*

Nelson Chan

   Director   October 14, 2015

*

Barry Cox

  

Chairman

  October 14, 2015

*

Keith Crandell

   Director   October 14, 2015

*

Francis Lee

   Director   October 14, 2015

*

Kevin Palatnik

   Director   October 14, 2015

 

* By:   /s/ Ron Shelton
  Attorney-in-fact

 

II-5


EXHIBIT INDEX

 

Exhibit

Number

  

Exhibit Title

  1.01*    Form of Underwriting Agreement.
  3.01*    Form of Restated Certificate of Incorporation of the Registrant, to be effective immediately upon the Registrant’s reincorporation in Delaware prior to this offering.
  3.02*    Form of Restated Certificate of Incorporation of the Registrant, to be effective upon the closing of this offering.
  3.03*    Bylaws of the Registrant, as currently in effect.
  3.04*    Form of Amended and Restated Bylaws of the Registrant, to be effective upon closing of this offering.
  4.01*    Amended and Restated Investors’ Rights Agreement by and among the Registrant and the preferred stockholders of the Registrant dated August 19, 2013.
  5.01    Opinion of Fenwick & West LLP regarding the legality of the securities being registered.
10.01*    Form of Indemnity Agreement.
10.02*    2007 Equity Incentive Plan and form of option grant.
10.03*    2015 Equity Incentive Plan and forms of equity awards.
10.04*    2015 Employee Stock Purchase Plan.
10.05*    Standard Industrial/Commercial Multi-Tenant Lease by and between the Registrant and DeGuigne Ventures, LLC dated May 3, 2011.
10.06†*    Technology License Agreement, as amended, by and between the Registrant and Axon Technologies Corporation, dated January 15, 2007.
10.07†*    Manufacturing Agreement by and between the Registrant and Altis Semiconductor dated September 28, 2012.
10.08*    Amended and Restated Employment Agreement, by and between the Registrant and Narbeh Derhacobian dated August 16, 2013.
10.09*    Offer Letter, dated May 30, 2013, by and between the Registrant and Ron Shelton.
10.10*    Amended and Restated Offer of Employment, dated August 16, 2013, between the Registrant and Shane Hollmer.
10.11†*    Credit Agreement, dated April 30, 2015, among the Registrant, Artemis Acquisition LLC and Opus Bank.
10.12†*    Cell Library License Agreement by and between the Registrant and Atmel Corporation, dated September 28, 2012.
10.13†*
   Process Technology and IP License Agreement by and between the Registrant and Atmel Corporation, dated September 28, 2012.
10.14*    Commercial Sublease by and between the Registrant and eGain Corporation dated, May 18, 2015
23.01    Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02*    Consent of Burr Pilger Mayer, Inc., independent registered public accounting firm.
24.01*    Power of Attorney.

 

* Previously filed.
Registrant has omitted portions of the referenced exhibit and filed such exhibit separately with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 promulgated under the Securities Act.
EX-5.01

Exhibit 5.01

 

LOGO

October 14, 2015

Adesto Technologies Corporation

1250 Borregas Avenue

Sunnyvale, CA 94089

Gentlemen and Ladies:

At your request, we have examined the Registration Statement on Form S-1 (File Number 333-206940) filed by Adesto Technologies Corporation, a Delaware corporation (the “Company”), with the Securities and Exchange Commission on October 5, 2015, as amended (the “Registration Statement”) in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of 4,715,000 shares of the Company’s Common Stock (the “Stock”).

As to matters of fact relevant to this opinion, we have examined such matters of fact as we have deemed necessary in order to render the opinion set forth herein, which included examination of the documents described on Exhibit A attached hereto (which is incorporated in this letter by reference). Capitalized terms used but not defined in the body of this letter have the meanings given to such terms on Exhibit A hereto.

In our examination of documents for purposes of this opinion, we have assumed, and express no opinion as to, the authenticity and completeness of all documents submitted to us as originals, the conformity to originals and completeness of all documents submitted to us as copies, the legal capacity of all persons or entities executing the same and the lack of any undisclosed termination, modification, waiver or amendment to any document referenced in items (5) and (6) of Exhibit A.

We render this opinion only with respect to, and express no opinion herein concerning the application or effect of the laws of any jurisdiction other than, the existing laws of the United States of America and of the Delaware General Corporation Law and reported judicial decisions relating thereto.

In connection with our opinion expressed in paragraph (2) below, we have assumed that, at or prior to the time of the delivery of any shares of Stock, the Registration Statement will have been declared effective under the Securities Act of 1933, as amended, that the registration will apply to such shares of Stock and will not have been modified or rescinded and that there will not have occurred any change in law affecting the validity of the issuance of such shares of Stock.

Based upon the foregoing, we are of the following opinion:

(1) the Company is a corporation validly existing, in good standing, under the laws of the State of Delaware; and

(2) the up to 4,715,000 shares of Stock to be issued and sold by the Company, when issued, sold and delivered in the manner and for the consideration stated in the Registration Statement and the Prospectus and in accordance with the resolutions adopted by the Board and to be adopted by the Pricing Committee of the Board, will be validly issued, fully paid and nonassessable.


Adesto Technologies Corporation

October 14, 2015

Page 2

 

We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us, if any, in the Registration Statement, the Prospectus constituting a part thereof and any amendments thereto.

This opinion is intended solely for use in connection with the sale of shares subject to the Registration Statement and is not to be relied upon for any other purpose. This opinion is rendered as of the date first written above and based solely on our understanding of facts in existence as of such date after the aforementioned examination. We assume no obligation to advise you of any fact, circumstance, event or change in the law subsequent to the date of effectiveness of the Registration Statement or the facts that may thereafter be brought to our attention whether or not such occurrence would affect or modify the opinions expressed herein.

Very truly yours,

/s/ Fenwick & West LLP


EXHIBIT A

to

Legal Opinion Regarding Form S-1 Registration Statement

of Adesto Technologies Corporation, a Delaware corporation (the “Company”)

Certain Reviewed Documents

Capitalized terms used but not defined in this Exhibit A have the meanings defined for such terms in the Opinion Letter to which this Exhibit A is attached.

 

  1. the Company’s Certificate of Merger and Amended and Restated Certificate of Incorporation, as amended, certified by the Delaware Secretary of State on October 9, 2015 (the “Restated Certificate”) and the Restated Certificate of Incorporation that the Company intends to file and that will be effective upon the consummation of the sale of the Stock (the “Post-Effective Restated Certificate”);

 

  2. the Company’s Restated Bylaws, adopted by the Company’s Board of Directors (the “Board”) on September 28, 2015 (the “Restated Bylaws”) and the Amended and Restated Bylaws that the Company has adopted in connection with, and that will be effective upon the consummation of the sale of the Stock (the “Post-Effective Bylaws”);

 

  3. the Registration Statement, together with the Exhibits filed as a part thereof or incorporated therein by reference;

 

  4. the prospectus prepared in connection with the Registration Statement (the “Prospectus”);

 

  5. minutes of meetings and actions by written consent of the Board and the Company’s stockholders (the “Stockholders”) at which, or pursuant to which, the Restated Certificate, the Post-Effective Restated Certificate, the Restated Bylaws and the Post-Effective Bylaws were approved;

 

  6. minutes of meetings and actions by written consent of the Board and Stockholders at which, or pursuant to which, the sale and issuance of the Stock and related matters were approved;

 

  7. the stock records for the Company that the Company has provided to us (consisting of a list of Stockholders and a list of the Company’s option and warrant holders and of any rights to purchase capital stock, each prepared by the Company and dated October 12, 2015, verifying the number of such issued and outstanding securities);

 

  8. a Certificate of Good Standing issued by the Delaware Secretary of State dated October 12, 2015, stating that the Company is qualified to do business and is in good standing under the laws of the State of Delaware (the “Certificate of Good Standing”);

 

  9. a Management Certificate addressed to us and dated of even date herewith executed by the Company containing certain factual representations (the “Management Certificate”); and

 

  10. the underwriting agreement to be entered into by and among the Company and the several Underwriters named in Schedule I thereto.