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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