As filed with the Securities and Exchange Commission on October 27, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
ADESTO TECHNOLOGIES CORPORATION
(Exact name of Registrant as specified in its charter)
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Delaware |
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16-1755067 |
(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer
Identification Number) |
1250 Borregas Avenue
Sunnyvale, CA 94089
(408) 400-0578
(Address,
including zip code, and telephone number, including area code, of Registrants principal executive offices)
2015 Equity
Incentive Plan
2015 Employee Stock Purchase Plan
2007 Equity Incentive Plan
(Full title of the plans)
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)
Please send copies of all
communications to:
Mark A. Leahy, Esq.
William L. Hughes, Esq.
Fenwick & West LLP
801 California Street
Mountain View, CA 94041
(650) 988-8500
Indicate by
check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company (as defined in Rule 12b-2 of the Exchange Act):
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Large Accelerated Filer |
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Accelerated Filer |
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Non-accelerated Filer |
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x (Do not check if a smaller reporting company) |
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Smaller Reporting Company |
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities
to be Registered |
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Amount
to be
Registered(1) |
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Proposed
Maximum Offering
Price Per Unit |
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Proposed
Maximum Aggregate
Offering Price |
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Amount of
Registration Fee |
Common Stock, $0.0001 par value |
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-- To be issued under the 2015 Equity Incentive Plan |
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1,813,272(2) |
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$5.00(3) |
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$ 9,066,360 |
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$ 913 |
-- To be issued under the 2015 Employee Stock Purchase Plan |
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150,000 |
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$4.25(4) |
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$ 637,500 |
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$ 65 |
-- Outstanding under the 2007 Equity Incentive Plan |
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797,456(5) |
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$2.50(6) |
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$ 1,993,640 |
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$ 201 |
Total |
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2,760,728 |
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$11,697,500 |
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$1,179 |
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(1) |
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the Securities Act), this Registration Statement shall also cover any additional shares of the Registrants common
stock that becomes issuable under the Registrants 2015 Equity Incentive Plan, 2015 Employee Stock Purchase Plan, or 2007 Equity Incentive Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected
without the receipt of consideration that increases the number of the Registrants outstanding shares of common stock. |
(2) |
Shares of common stock reserved for issuance under the 2015 Equity Incentive Plan consists of 1,813,272 shares of common stock previously reserved but unissued under the 2007 Equity Incentive Plan on the
effective date of the 2015 Equity Incentive Plan that are now available for issuance under the 2015 Equity Incentive Plan. In addition, any shares subject to outstanding awards under the 2007 Equity Incentive Plan that are issuable upon the exercise
of options that expire without having been exercised in full, are forfeited or repurchased by us at the original purchase price or are used to pay the exercise price or withholding obligations related to any award will be available for future grant
and issuance under the 2015 Equity Incentive Plan. |
(3) |
Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h) under the Securities Act and based upon the initial public offering price of $5.00 per share (the Initial
Public Offering Price). |
(4) |
Estimated solely for the purpose of calculating the registration fee in accordance with Rules 457(h) under the Securities Act and based upon the Initial Public Offering Price, multiplied by 85%, which is the percentage
of the trading price per share applicable to purchasers under the 2015 Employee Stock Purchase Plan. |
(5) |
Represents shares of common stock reserved for issuance pursuant to outstanding stock option awards under the 2007 Equity Incentive Plan. Any such shares of common stock that are subject to outstanding awards under the
2007 Equity Incentive Plan that are issuable upon the exercise of options that expire without having been exercised in full, are forfeited or repurchased by us at the original purchase price or are used to pay the exercise price or withholding
obligations related to any award will be available for future grant and issuance under the 2015 Equity Incentive Plan. See footnote 2 above. |
(6) |
Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h) under the Securities Act on the basis of the weighted average exercise price of $2.50 per share (rounded up to the
nearest cent). |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for by Part I of Form S-8 is omitted from this Registration Statement in accordance with Rule 428 of the
Securities Act of 1933, as amended (the Securities Act) and the instructions to Form S-8. In accordance with the rules and regulations of the Securities and Exchange Commission (the Commission) and the instructions to Form
S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
I-1
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Commission pursuant to the Securities Act and the Securities Exchange Act of 1934, as
amended (the Exchange Act) are incorporated herein by reference:
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(a) |
the Registrants prospectus filed on October 27, 2015 pursuant to Rule 424(b) under the Securities Act relating to the Registration Statement on Form S-1, as amended (File No. 333-206940), which contains
audited consolidated financial statements for the Registrants latest fiscal year for which such statements have been filed; and |
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(b) |
The description of the Registrants common stock contained in the Registrants registration statement on Form 8-A (File No. 001-37582) filed on October 5, 2015 under Section 12(b) of the
Exchange Act, including any amendment or report filed for the purpose of updating such description. |
All documents filed by
the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the filing of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing such documents, except as to specific sections
of such documents as set forth therein. 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 in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such 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.
The Registrant is incorporated under the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law authorizes a
court to award, or a corporations 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.
As permitted by the Delaware General Corporation Law, the Registrants restated certificate of incorporation includes a provision that
eliminates, to the fullest extent permitted by law, the personal liability of a director for monetary damages resulting from breach of his fiduciary duty as a director, except for liability:
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for any breach of the directors duty of loyalty to the Registrant or its stockholders; |
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for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; |
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under Section 174 of the Delaware General Corporation Law (regarding unlawful dividends, stock purchases or redemptions); or |
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for any transaction from which the director derived an improper personal benefit. |
As
permitted by the Delaware General Corporation Law, the Registrants bylaws provide that:
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the Registrant is required to indemnify its directors and officers to the fullest extent permitted by the Delaware General Corporation Law, subject to certain very limited exceptions; |
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the Registrant may indemnify its other employees and agents as set forth in the Delaware General Corporation Law; |
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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
certain very limited exceptions; and |
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the rights conferred in the restated bylaws are not exclusive. |
II-1
In addition, the Registrant has entered into indemnity agreements with each of its current
directors and executive officers. These agreements provide for the indemnification of directors and executive officers to provide these directors and executive officers additional contractual assurances regarding the scope of the indemnification set
forth in the Registrants 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.
The Registrant currently carries liability insurance for its directors
and executive officers for securities matters.
The indemnification provisions in the Registrants restated certificate of
incorporation and restated bylaws and the indemnification agreements entered into between the Registrant and each of its directors and executive officers is sufficiently broad to permit indemnification of the Registrants directors and
executive officers for liabilities arising under the Securities Act.
In addition, Messrs. Alexei Andreev and Keith Crandell, directors of
the Registrant, are indemnified by their employers with regard to serving on the Registrants board of directors.
See also the
undertakings set out in response to Item 9 hereof.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed herewith:
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Exhibit
Number |
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Incorporated by Reference |
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Filed
Herewith |
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Exhibit Description |
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Form |
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File No. |
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Exhibit |
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Filing Date |
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4.1 |
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Restated Certificate of Incorporation, as amended to date |
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S-1 |
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333-206940 |
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3.01 |
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10/26/2015 |
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4.2 |
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Form of Restated Certificate of Incorporation of the Registrant |
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S-1 |
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333-206940 |
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3.02 |
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10/5/2015 |
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4.3 |
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Bylaws of the Registrant, as currently in effect |
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S-1 |
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333-206940 |
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3.03 |
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10/5/2015 |
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4.4 |
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Form of Restated Bylaws of the Registrant |
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S-1 |
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333-206940 |
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3.04 |
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10/5/2015 |
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5.1 |
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Opinion of Fenwick & West LLP |
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X |
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23.1 |
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Consent of Fenwick & West LLP (contained in Exhibit 5.1) |
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X |
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23.2 |
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Consent of Burr Pilger Mayer, Inc., independent registered public accounting firm |
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X |
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24.1 |
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Power of Attorney (included on the signature page to this Registration Statement) |
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X |
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99.1 |
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2007 Equity Incentive Plan and form of option grant |
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S-1 |
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333-206940 |
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10.02 |
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9/14/2015 |
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99.2 |
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2015 Equity Incentive Plan and forms of equity awards |
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S-1 |
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333-206940 |
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10.03 |
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10/5/2015 |
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99.3 |
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2015 Employee Stock Purchase Plan |
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S-1 |
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333-206940 |
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10.04 |
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10/5/2015 |
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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 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 the 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
II-2
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 a 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 the Registration Statement or any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(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 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 the 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 Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans annual report pursuant to
Section 15(d) of the Exchange Act) 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.
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 hereby, 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, 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 Sunnyvale, California, on this 27th day of October 2015.
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ADESTO TECHNOLOGIES CORPORATION |
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By: |
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/s/ Narbeh Derhacobian |
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Narbeh Derhacobian |
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President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Narbeh Derhacobian
and Ron Shelton, and each of them, as his or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments (including post-effective amendments) 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, granting unto said attorney-in-fact and agent full power and authority to
do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
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.
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Name |
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Title |
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Date |
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/s/ Narbeh Derhacobian
Narbeh Derhacobian |
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President, Chief Executive Officer and Director
(Principal Executive Officer) |
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October 27, 2015 |
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/s/ Ron Shelton
Ron Shelton |
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Chief Financial Officer (Principal Financial
and Accounting Officer) |
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October 27, 2015 |
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/s/ Alexei Andreev
Alexei Andreev |
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Director |
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October 27, 2015 |
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/s/ Nelson Chan
Nelson Chan |
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Director |
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October 27, 2015 |
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/s/ Barry Cox
Barry Cox |
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Chairman |
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October 27, 2015 |
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/s/ Keith Crandell
Keith Crandell |
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Director |
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October 27, 2015 |
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/s/ Francis Lee
Francis Lee |
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Director |
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October 27, 2015 |
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/s/ Kevin Palatnik
Kevin Palatnik |
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Director |
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October 27, 2015 |
II-4
EXHIBIT INDEX
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Exhibit
Number |
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Incorporated by Reference |
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Filed
Herewith |
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Exhibit Description |
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Form |
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File No. |
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Exhibit |
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Filing Date |
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4.1 |
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Restated Certificate of Incorporation, as amended to date |
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S-1 |
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333-206940 |
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3.01 |
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10/26/2015 |
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4.2 |
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Form of Restated Certificate of Incorporation of the Registrant |
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S-1 |
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333-206940 |
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3.02 |
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10/5/2015 |
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4.3 |
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Bylaws of the Registrant, as currently in effect |
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S-1 |
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333-206940 |
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3.03 |
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10/5/2015 |
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4.4 |
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Form of Restated Bylaws of the Registrant |
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S-1 |
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333-206940 |
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3.04 |
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10/5/2015 |
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5.1 |
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Opinion of Fenwick & West LLP |
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X |
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23.1 |
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Consent of Fenwick & West LLP (contained in Exhibit 5.1) |
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X |
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23.2 |
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Consent of Burr Pilger Mayer, Inc., independent registered public accounting firm |
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X |
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24.1 |
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Power of Attorney (included on the signature page to this Registration Statement) |
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X |
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99.1 |
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2007 Equity Incentive Plan and form of option grant |
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S-1 |
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333-206940 |
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10.02 |
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9/14/2015 |
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99.2 |
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2015 Equity Incentive Plan and forms of equity awards |
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S-1 |
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333-206940 |
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10.03 |
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10/5/2015 |
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99.3 |
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2015 Employee Stock Purchase Plan |
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S-1 |
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333-206940 |
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10.04 |
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10/5/2015 |
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II-5
Exhibit 5.1
October 27, 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-8 to be filed by Adesto Technologies Corporation, a Delaware
corporation (the Company), with the Securities and Exchange Commission on or about October 27, 2015 (the Registration Statement) in connection with the registration under the Securities Act of
1933, as amended, of an aggregate of 2,760,728 shares of the Companys Common Stock (the Stock), par value $0.0001 per share, that are subject to issuance by the Company upon (a) the exercise of stock options
granted under the Companys 2007 Equity Incentive Plan, as amended (the 2007 Plan), (b) the exercise or settlement of awards to be granted under the Companys 2015 Equity Incentive Plan (the 2015
Plan) and (c) the exercise of purchase rights to be granted under the Companys 2015 Employee Stock Purchase Plan (the 2015 Employee Plan). The plans referred to in clauses (a) through
(c) above are collectively referred to in this letter as the Plans and are each, a Plan.
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), (6) and (7) 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.
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 2,760,728 shares of Stock that may be issued and sold by the Company upon (a) the exercise of stock options
granted under the 2007 Plan, (b) the exercise or settlement of awards to be granted under the 2015 Plan and (c) the exercise of purchase rights to be granted under the 2015 Purchase
Adesto Technologies Corporation
October 27, 2015
Page 2
Plan, when issued, sold and delivered in accordance with the applicable Plan and purchase agreements to be entered into thereunder and in the manner and for the consideration stated in the
Registration Statement and the relevant Prospectus, will be validly issued, fully paid and nonassessable.
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.
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Very truly yours, |
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/s/ Fenwick & West LLP |
EXHIBIT A
to
Legal Opinion
Regarding Form S-8 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.
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the Companys Certificate of Merger and Amended and Restated Certificate of Incorporation, as amended, certified by the Delaware Secretary of State on October 23, 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);
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the Companys Amended and Restated Bylaws, adopted by the Companys 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); |
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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. |
The Plans and related forms of Plan agreements. |
|
6. |
minutes of meetings and actions by written consent of the Board and the Companys 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; |
|
7. |
minutes of meetings and actions by written consent of the Board and Stockholders at which, or pursuant to which, the Plans and the filing of the Registration Statement, the reservation of the Stock for sale and issuance
pursuant to the Plans and the sale and issurance of the Stock pursuant to the Plans were approved; |
|
8. |
the stock records for the Company that the Company has provided to us (consisting of a list of Stockholders and a list of the Companys option and warrant holders and of any rights to purchase capital stock, each
prepared by the Company and dated October 26, 2015, verifying the number of such issued and outstanding securities); |
|
9. |
a Certificate of Good Standing issued by the Delaware Secretary of State dated October 26, 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); and |
|
10. |
a Management Certificate addressed to us and dated of even date herewith executed by the Company containing certain factual representations (the Management Certificate). |
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-8 of our report dated October 2, 2015 relating to the
consolidated financial statements of Adesto Technologies Corporation and its subsidiaries, which appears in the Prospectus filed on October 27, 2015 pursuant to Rule 424(b) under the Securities Act of 1933, relating to Adesto Technologies
Corporations Registration Statement No. 333-206940 on Form S-1.
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/s/ Burr Pilger Mayer, Inc. |
|
San Jose, California |
October 27, 2015 |
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