As filed with the Securities and Exchange Commission on August
9, 2022
Registration No. 333-238057
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
POST-EFFECTIVE AMENDMENT NO. 3
TO
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________________
INSEEGO CORP.
(Exact name of registrant as specified in its charter)
___________________________
|
Delaware |
81-3377646 |
|
(State or other jurisdiction of
incorporation or organization)
|
(I.R.S. Employer
Identification Number)
|
9710 Scranton Road, Suite 200
San Diego, California 92121
(858) 812-3400
(Address, including zip code, and telephone number, including
area code, of registrant’s principal executive offices)
___________________________
Kurt E. Scheuerman
Senior Vice President and General Counsel
Inseego Corp.
9710 Scranton Road, Suite 200
San Diego, California 92121
(858) 812-3400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
___________________________
Copies to:
Teri O’Brien, Esq.
Latham & Watkins LLP
12670 High Bluff Drive
San Diego, California 92130
(858) 523-5400
___________________________
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes
effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. ☐
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, as amended (the “Securities
Act”) other than securities offered only in connection with
dividend or interest reinvestment plans, 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,
please 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 registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following box.
☐
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the
following box. ☐
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a
smaller reporting company or an emerging growth company. See the
definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in
Rule 12b-2 of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”).
| Large accelerated filer ☒ |
Accelerated filer ☐ |
| Non-accelerated filer ☐ |
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 Securities
Act. ☐
___________________________
EXPLANATORY NOTE
This Post-Effective Amendment No. 3 to the Registration Statement
on Form S-3 (Commission File No. 333-238057), as previously amended
by Post-Effective Amendments Nos. 1 and 2 (as so amended, the
“Shelf Registration Statement”), of Inseego Corp. is being filed
solely to update the opinion of legal counsel and auditor’s consent
filed with the Shelf Registration Statement as Exhibits 5.1 and
23.2, respectively, and to amend the information contained in the
Shelf Registration Statement under the Legal Matters heading by
replacing the reference to “Paul Hastings LLP” thereunder with
“Latham & Watkins LLP”. Accordingly, this Post-Effective
Amendment No. 3 consists only of the facing page, this explanatory
note, Part II of the Shelf Registration Statement, and updated
Exhibits 5.1 and 23.2. The base prospectus and sales agreement
prospectus are otherwise unchanged and have been omitted.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
| Item 14. |
Other Expenses of Issuance and
Distribution. |
The following table sets forth the estimated costs and expenses,
other than underwriting discounts and commissions, payable by us in
connection with the offering of the securities being registered.
All the amounts shown are estimates, except for the SEC
registration fee.
| SEC
Registration Fee |
|
$ |
9,270 |
(1) |
| Trustee and Transfer Agent
Fees |
|
|
* |
|
| Legal Fees and
Expenses |
|
|
* |
|
| Nasdaq Global Select Market
Listing Fees (if applicable) |
|
|
* |
|
| Accounting Fees and
Expenses |
|
|
* |
|
| Printing and Miscellaneous
Fees |
|
|
* |
|
| Total |
|
$ |
* |
|
| _______________ |
| * |
The amount of securities and
number of offerings are indeterminable and the expenses cannot be
estimated at this time. An estimate of the aggregate expenses in
connection with the sale and distribution of securities being
offered will be included in the applicable prospectus
supplement. |
| |
|
| (1) |
Fee previously paid. |
| Item 15. |
Indemnification of Directors and
Officers. |
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 Certificate of Incorporation provides that, to the fullest
extent permitted by the DGCL, our directors shall not be personally
liable to the Company or its stockholders for monetary damages for
breach of the directors’ fiduciary duties. This provision in our
Certificate of Incorporation does not eliminate the duty of care,
and in appropriate circumstances equitable remedies such as
injunctive or other forms of non-monetary relief will remain
available under Delaware law. In addition, each director will
continue to be subject to liability for breach of the director’s
duty of loyalty, for acts or omissions not in good faith or
involving intentional misconduct or knowing violations of the law,
for actions leading to improper personal benefit to the director,
and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision
also does not affect a director’s responsibilities under any other
law, such as the federal securities laws or state or federal
environmental laws.
Article 6 of our Bylaws provides that we will indemnify, to
the maximum extent and in the manner permitted by the DGCL, each
person who was or is made a party or is threatened to be made a
party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the
fact that he or she is or was a director or officer of the Company,
whether the basis of such proceeding is alleged action in an
official capacity as a director or officer or in any other capacity
while serving as a director or officer, against all expenses,
liability and loss reasonably incurred or suffered by such person
in connection therewith.
In addition to the above, we have entered into indemnification
agreements with each of our directors and executive officers (each,
an “Indemnitee”). In general, the indemnification agreements
provide that, subject to certain limitations, the Company will
indemnify and hold harmless each Indemnitee against all expenses,
judgments, penalties, fines and amounts paid in settlement actually
and reasonably incurred by such Indemnitee or on such Indemnitee’s
behalf, in connection with certain pending, completed or threatened
proceedings, as defined in the indemnification agreements, if the
Indemnitee acted in good faith and reasonably in the best interests
of the Company and, with respect to any criminal proceeding, had no
reasonable cause to believe that his or her conduct was unlawful.
We also have directors’ and officers’ liability insurance, which
provides coverage against certain liabilities that may be incurred
by our directors and officers in their capacities as directors and
officers of the Company.
Any underwriting agreement that we enter into (to be filed as
Exhibit 1.1) may provide for indemnification by any
underwriters of us, our directors, our officers who sign the Shelf
Registration Statement and our controlling persons for certain
liabilities, including certain liabilities arising under the
Securities Act.
_________
| |
# |
To be filed by amendment or by a
report filed under the Exchange Act and incorporated herein by
reference, if applicable. |
| |
† |
To be incorporated herein by
reference from a subsequent filing in accordance with
Section 305(b)(2) of the Trust Indenture Act of 1939, if
applicable. |
(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 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; and
(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),
(1)(ii) and (1)(iii) above do not apply if 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 and
Section 15(d) of the Exchange Act that are incorporated
by reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is
part of 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.
(5) That, for the purpose of determining liability under the
Securities Act to any purchaser:
(A) Each prospectus filed by the registrant pursuant to Rule
424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose
of providing the information required by Section 10(a) of
the Securities Act shall be deemed to be part of and included in
the registration statement as of the earlier of the date such form
of prospectus is first used after effectiveness or the date of the
first contract of sale of securities in the offering described in
the prospectus. As provided in Rule 430B, for liability purposes of
the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective
date.
(6) That, for the purpose of determining liability of the
registrant under the Securities Act to any purchaser in the initial
distribution of the securities, the undersigned registrant
undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such
purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant
to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared
by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to
the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv) Any other communication that is an offer in the offering made
by the undersigned registrant to the purchaser.
(b) 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 Section 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 the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of the 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 SEC 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.
(j) To file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this Post-Effective Amendment No. 3 to the
Registration Statement on Form S-3 to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of
San Diego, State of California, on August 7, 2022.
| |
INSEEGO
CORP. |
| |
|
|
| |
|
|
| |
By: |
/s/
Ashish Sharma |
| |
|
Ashish Sharma
President and Chief Executive Officer |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
this Post-Effective Amendment No. 3 to the Registration Statement
on Form S-3 has been signed below by the following persons in the
capacities and on the dates indicated.
|
NAME |
TITLE |
DATE |
| |
|
|
| /s/
Ashish Sharma |
President and Chief Executive Officer |
August
7, 2022 |
| Ashish
Sharma |
(Principal Executive Officer) |
|
| |
|
|
| /s/
Robert Barbieri |
Chief Financial Officer
(Principal Financial and Accounting Officer)
|
August 6, 2022 |
| Robert
Barbieri |
| |
|
|
| /s/
Jeffrey Tuder |
Chairman of the Board of Directors |
August 5, 2022 |
| Jeffrey Tuder |
| |
|
|
| /s/
Christopher Harland |
Director |
August 5, 2022 |
| Christopher Harland |
| |
|
|
| /s/
James B. Avery |
Director |
August 8, 2022 |
| James
B. Avery |
| |
| /s/
Stephanie Bowers |
Director |
August
9, 2022 |
| Stephanie Bowers |
|
|
| |
|
|
|
/s/ Christopher Lytle |
Director |
August 5, 2022 |
| Christopher Lytle |
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