Securities Registration: Employee Benefit Plan (s-8)
December 08 2016 - 6:05AM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on December 7, 2016
Registration No. 333-
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INSEEGO CORP.
(Exact name of registrant as specified in its charter)
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Delaware
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81-3377646
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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9645 Scranton Road, Suite 205
San Diego, CA 92121
(Address of Principal Executive Offices)(Zip Code)
Amended and
Restated Inseego Corp. 2009 Omnibus Incentive Compensation Plan
(Full title of the plan)
Lance Bridges
Senior
Vice President, General Counsel and Secretary
Inseego Corp.
9645 Scranton Road, Suite 205
San Diego, CA 92121
(Name
and address of agent for service)
(858) 812-3400
(Telephone number, including area code, of agent for service)
Copy To:
Teri
O’Brien, Esq.
Paul Hastings LLP
4747 Executive Drive, 12
th
Floor
San Diego, CA 92121
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 the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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☐
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Accelerated filer
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☒
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Non-accelerated filer
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☐ (Do not check if a smaller reporting company)
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Smaller reporting company
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☐
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CALCULATION OF THE REGISTRATION FEE
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Title of securities
to be registered
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Amount
to be
registered(1)
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Proposed
maximum
offering price
per share
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Proposed
maximum
aggregate
offering price
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Amount of
registration fee
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Amended and Restated Inseego Corp. 2009 Omnibus Incentive
Compensation Plan
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3,000,000(2)
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$2.38(3)
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$7,140,000
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$827.53
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Common Stock, par value $0.001
per share
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers any additional shares of the common stock, par value $0.001 per share (the
“Common Stock”), of Inseego Corp., a Delaware corporation (the “Registrant”), that may be offered or issued under the Amended and Restated Inseego Corp. 2009 Omnibus Incentive Compensation Plan (the “2009 Plan”) to
prevent dilution resulting from stock splits, stock dividends, recapitalizations, or similar transactions.
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(2)
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Represents 3,000,000 additional shares of Common Stock available for future issuance under the 2009 Plan. The Registrant previously registered 2,500,000 shares of Common Stock under the 2009 Plan on the
Registration Statement on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on November 10, 2009 (File No. 333-163033), 1,500,000 shares of Common Stock under the 2009 Plan on the Registration Statement on Form
S-8 filed with the Commission on August 25, 2011 (File 333-176489), 3,000,000 shares of Common Stock under the 2009 Plan on the Registration Statement on Form S-8 filed with the Commission on August 29, 2013 (File No. 333-190879), 3,000,000
shares of Common Stock under the 2009 Plan on the Registration Statement on Form S-8 filed with the Commission on March 10, 2015 (File No. 333-202648) and 2,323,000 shares of Common Stock under the 2009 Plan on the Registration Statement on Form S-8
filed with the Commission on October 1, 2015 (File No. 333-207233).
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(3)
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Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h) and Rule 457(c) under the Securities Act, based upon the average of the high and low prices of the Common Stock on
December 2, 2016
as quoted on the NASDAQ Global Select Market. Pursuant to General Instruction E of Form S-8, the registration fee is calculated with respect to the additional securities
registered on this Registration Statement only.
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This
Registration Statement will become effective upon filing in accordance with Rule 462 under the Securities Act.
INTRODUCTORY NOTES
This Registration Statement on Form S-8 is being filed by Inseego Corp., a Delaware corporation (the “Registrant”), to register an
additional 3,000,000 shares of the Registrant’s common stock, par value $0.001 per share (the “Common Stock”), reserved for issuance under the Amended and Restated Inseego Corp. 2009 Omnibus Incentive Compensation Plan (the “2009
Plan”).
The documents containing the information specified in Part I of Form S-8 will be delivered to participants in the 2009 Plan,
as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not required to be, and are not, filed with the Commission either as part of this Registration Statement or as a
prospectus or prospectus supplement pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in this 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.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Upon written or oral request, the Registrant will provide, without charge, the documents incorporated by reference in Item 3 of Part II of
this Registration Statement. The Registrant will also provide, without charge, upon written or oral request, other documents required to be delivered to employees pursuant to Rule 428(b) of the Securities Act. Requests for the above
mentioned information should be directed to Inseego Corp., Attn: Stockholder Services, 9645 Scranton Road, Suite 205, San Diego, CA 92121 (or, beginning on December 12, 2016, 9605 Scranton Road, Suite 300, San Diego, CA 92121), phone number (858)
812-3400.
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Item 3.
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Incorporation of Documents by Reference.
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The following documents, which have been filed
by the Registrant with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are hereby incorporated by reference, and shall be deemed to be a part hereof:
(a) the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2015, filed with the
Commission on March 14, 2016;
(b) all other reports of the Registrant filed with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Registrant’s Annual Report referred to in (a) above; and
(c) the description of the Registrant’s Common Stock contained in the Registrant’s Current Report on Form
8-K, dated November 9, 2016, which updates the description of the Common Stock contained in the Registration Statement on Form S-1 (File No. 333-42570), filed with the Commission on July 28, 2000, including any amendments or reports filed for
the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, are incorporated
by reference in this Registration Statement and are a part hereof from the date of filing of such documents; except as to any portion of any future annual or quarterly report to stockholders or document or current report furnished under current
Items 2.02 or 7.01 of Form 8-K that is not deemed filed under such provisions.
Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Under no circumstances will any information filed under current Items 2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference
unless such Form 8-K expressly provides to the contrary.
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Item 4.
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Description of Securities.
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Not applicable.
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Item 5.
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Interests of Named Experts and Counsel.
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Not applicable.
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Item 6.
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Indemnification of Directors and Officers.
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Section 145(a) of the Delaware General
Corporation Law (the “DGCL”) provides that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party 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 the corporation) by reason of the fact that such person 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 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 if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person
acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if he or she acted under similar
standards, except that no indemnification may be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the court in which such action or suit
was brought shall determine that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to be indemnified for such expenses which the court shall deem proper.
Section 145 of the DGCL further provides that: (i) to the extent that a present or former or director or officer of a corporation has been
successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (a) and (b) or in the defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including
attorneys’ fees) actually and reasonably incurred by him or her in connection therewith; (ii) indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and
(iii) the corporation may purchase and maintain insurance on behalf of any present or former director, officer, employee or agent of the corporation or any person who at the request of the corporation was serving in such capacity for another entity
against any liability asserted against such person and incurred by him or her in any such capacity or arising out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liabilities
under Section 145.
Our amended and restated bylaws provide indemnification of our directors and officers to the maximum extent permitted
by the DGCL. In addition, we have entered into indemnification agreements with our directors and officers, and we maintain insurance policies insuring our directors and officers against certain liabilities that they may incur in their capacity as
officers and directors of the Registrant.
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Item 7.
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Exemption from Registration Claimed.
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Not applicable.
The Exhibits to this Registration Statement are listed in the
Exhibit Index to this Registration Statement and are incorporated by reference herein.
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(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. 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 percent 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 this Registration Statement or any material change to such information in this Registration Statement;
provided, however
, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if this 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 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 benefit 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.
(h) 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 the 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.
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SIGNATURES
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-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of California, on this 7
th
day of December, 2016.
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INSEEGO CORP.
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By:
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/s/ Michael A. Newman
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Michael A. Newman
Executive Vice President,
Chief Financial Officer and Assistant Secretary
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS
, that each person whose signature appears below constitutes and appoints, jointly and severally, Sue
Swenson and Michael Newman his or her attorneys-in-fact, each with the power of substitution, for him or her in any and all capacities, to sign any amendments (including post-effective amendments) to this Registration Statement on Form S-8 (or any
other registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) of the Securities Act), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission,
hereby ratifying and confirming all that each of said attorneys-in-fact, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-8 has been signed by the following persons in the
capacities and on the dates indicated.
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Signatures
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Title
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Date
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/s/ Sue Swenson
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Chief Executive Officer (Principal Executive
Officer) and Director
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December 7, 2016
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Sue Swenson
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/s/ Michael A. Newman
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Executive Vice President, Chief Financial Officer (Principal Financial and Accounting Officer) and
Assistant Secretary
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December 7, 2016
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Michael A. Newman
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/s/ Philip Falcone
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Director
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December 7, 2016
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Philip Falcone
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/s/ James Ledwith
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Director
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December 7, 2016
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James Ledwith
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/s/ Robert Pons
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Director
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December 7, 2016
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Robert Pons
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/s/ David A. Werner
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Director
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December 7, 2016
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David A. Werner
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EXHIBIT INDEX
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Incorporated
by Reference
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Exhibit
Number
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Exhibit Description
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Form
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Filing Date
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Exhibit
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Filed–
Furnished
Herewith
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4.1
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Amended and Restated Certificate of Incorporation
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8-K
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November 9, 2016
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3.1
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4.2
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Amended and Restated Bylaws
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8-K
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November 9, 2016
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3.2
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4.3
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Form of Inseego Corp. Common Stock Certificate
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8-K
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November 9, 2016
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4.1
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4.4
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Amended and Restated Inseego Corp. 2009 Omnibus Incentive Compensation Plan
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8-K
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June 20, 2016
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10.1
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5.1
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Opinion of Paul Hastings LLP
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*
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23.1
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Consent of Paul Hastings LLP (included in Exhibit 5.1)
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*
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23.2
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Consent of Independent Registered Public Accounting Firm, Ernst & Young LLP
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*
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23.3
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Consent of Mazars (Gauteng) Inc.
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*
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24.1
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Power of Attorney (included on signature page)
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*
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