As filed with the Securities and Exchange Commission on October 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

 

 

Everspin Technologies, Inc.

(Exact name of Registrant as specified in its charter)

 

 

 

Delaware   26-2640654

(State or other jurisdiction of

Incorporation or organization)

 

(I.R.S. Employer

Identification No.)

1347 N. Alma School Road

Suite 220

Chandler, Arizona 85224

(480) 347-1111

(Address of principal executive offices) (Zip code)

Everspin Technologies, Inc. 2008 Equity Incentive Plan

Everspin Technologies, Inc. 2016 Equity Incentive Plan

Everspin Technologies, Inc. 2016 Employee Stock Purchase Plan

(Full title of the plan)

 

 

Phillip LoPresti

President and Chief Executive Officer

Everspin Technologies, Inc.

1347 N. Alma School Road

Suite 220

Chandler, Arizona 85224

(480) 347-1111

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

 

 

Copies to:

Matthew B. Hemington

Brett D. White

Cooley LLP

3175 Hanover Street

Palo Alto, California 94304

(650) 843-5000

 

 

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.

 

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

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of Securities

to be Registered

 

Amount

to be

Registered (1)

 

Proposed

Maximum

Offering Price

per Share (2)

 

Proposed

Maximum

Aggregate

Offering Price (2)

 

Amount of

Registration Fee (2)

Common Stock, par value $0.0001 per share

  1,858,447   $6.80 - $8.11   $14,891,046   $1,726

 

 

(1) Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Registrant’s common stock that become issuable under the plans set forth herein by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected that results in an increase to the number of outstanding shares of Registrant’s common stock, as applicable.
(2) Estimated in accordance with Rule 457(c) and Rule 457(h) solely for the purpose of calculating the registration fee on the basis of (a) the weighted-average exercise price for outstanding options granted pursuant to the Registrant’s 2008 Equity Incentive Plan as of the date of this Registration Statement, (b) estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of the initial public offering price of $8.00 per share of common stock as set forth in the Registrant’s Registration Statement on Form S-1 (File No. 333-213569) declared effective on October 7, 2016, and (c) estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of the initial public offering price of $6.80 per share of common stock as set forth in the Registrant’s Registration Statement on Form S-1 (File No. 333-213569) declared effective on October 6, 2016 multiplied by 85%, the percentage of the price per share applicable to purchases under the 2016 Employee Stock Purchase Plan. The chart below details the calculations of the registration fee:

 

 

Securities   Number of
Shares of
Common Stock 		  Offering Price
Per Share 		  Aggregate
Offering
Price/Registration
Fee

Shares issuable upon the exercise of outstanding options granted under the 2008 Equity Incentive Plan

  1,262,294   $8.11   $10,237,205

Shares reserved for future grant under the 2016 Equity Incentive Plan

  500,000   $8.00   $4,000,000

Shares reserved for future grant under the 2016 Employee Stock Purchase Plan

  96,153   $6.80   $653,841

Proposed Maximum Aggregate Offering Price:

          $14,891,046

Registration Fee:

          $1,726

 

 

 

 

 

PART II

 

ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE

The following documents filed by Everspin Technologies, Inc. (the “Registrant”) with the Securities and Exchange Commission are incorporated by reference into this Registration Statement:

(a) The Registrant’s prospectus filed on October 7, 2016, pursuant to Rule 424(b) under the Securities Act relating to the Registration Statement on Form S-1 (File No. 333-213569), which contains audited financial statements for the Registrant’s latest fiscal year for which such statements have been filed.

(b) The description of the Registrant’s common stock which is contained in the registration statement on Form 8-A filed on September 28, 2016, (File No. 0001-37900) under the Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description.

(c) All other reports and documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items) on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this Registration Statement from the date of the filing of such reports and documents. 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 subsequently filed document that also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration 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

Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities, including reimbursement for expenses incurred, arising under the Securities Act. Our amended and restated certificate of incorporation provides for indemnification of our directors, officers, employees and other agents to the maximum extent permitted the Delaware General Corporation Law, and our bylaws provide for indemnification of our directors, officers, employees and other agents to the maximum extent permitted by the Delaware General Corporation Law. In addition, we have entered into indemnification agreements with our directors, officers and some employees containing provisions that may be in some respects broader than the specific indemnification provisions contained in the Delaware General Corporation Law. The indemnification agreements may require us, among other things, to indemnify our directors against certain liabilities that may arise by reason of their status or service as directors, officers and employees and to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified.

We maintain a directors’ and officers’ insurance policy.

 

ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.

Not applicable.

ITEM 8. EXHIBITS

 

         

Incorporated by Reference

    

Exhibit
Number

  

Description

  

Schedule
Form

  

File

Number

  

Exhibit

  

Filing Date

  4.1    Amended and Restated Certificate of Incorporation of the Registrant, as currently in effect.    S-1    333- 213569    3.1    September 26, 2016
  4.2    Bylaws of the Registrant, as currently in effect.    S-1    333- 213569    3.3    September 9, 2016
  5.1*    Opinion of Cooley LLP.            
23.1*    Consent of Cooley LLP (included in Exhibit 5.1).            
23.2*    Consent of Ernst & Young LLP, independent registered public accounting firm.            
24.1*    Power of Attorney (included on the signature page of this Form S-8).            
99.1    Everspin Technologies, Inc. 2008 Equity Incentive Plan, as amended, and Form of Stock Option Grant Notice, Option Agreement and Form of Notice of Exercise..    S-1    333- 213569    10.2    September 26, 2016
99.2    Everspin Technologies, Inc. 2016 Equity Incentive Plan and Form of Stock Option Grant Notice, Option Agreement and Form of Notice of Exercise.    S-1    333- 213569    10.3    September 26, 2016
99.3    Everspin Technologies, Inc. 2016 Employee Stock Purchase Plan.    S-1    333- 213569    10.4    September 26, 2016

 

* Filed herewith

 

ITEM 9. UNDERTAKINGS

 

1 . The undersigned registrant hereby undertakes:

(a) 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 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 a 20% 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)(i) and (a)(ii) 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 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.

(b) 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c) 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.

(d) 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.

2. 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 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

3. 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

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 Chandler, Arizona, on October 7, 2016.

 

EVERSPIN TECHNOLOGIES, INC.
By:  

/s/ Phillip LoPresti

Phillip LoPresti
President and Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose individual signature appears below hereby authorizes and appoints Phillip LoPresti and Jeffrey Winzeler, and each of them, with full power of substitution and resubstitution and full power to act without the other, as his true and lawful attorney-in-fact and agent to act in his name, place and stead and to execute in the name and on behalf of each person, individually and in each capacity stated below, and to file any and all 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 SEC, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing, ratifying and confirming all that said attorneys-in-fact and agents or any of them or their or his substitute or substitutes may lawfully do or cause to be done by virtue thereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

  

Title

 

Date

/s/ Phillip LoPresti

   President and Chief Executive Officer   October 7, 2016

Phillip LoPresti

   (Principal Executive Officer) and Director  

/s/ Jeffrey Winzeler

   Chief Financial Officer   October 7, 2016

Jeffrey Winzeler

   (Principal Accounting Officer)  

/s/ Robert W. England

   Director   October 7, 2016

Robert W. England

    

 

   Director  

Lawrence G. Finch

    

/s/ Ronald C. Foster

   Director   October 7, 2016

Ronald C. Foster

    

/s/ Stephen J. Socolof

   Director   October 7, 2016

Stephen J. Socolof

    

/s/ Peter Hébert

   Director   October 7, 2016

Peter Hébert

    

/s/ Geoffrey R. Tate

   Director   October 7, 2016
Geoffrey R. Tate     

EXHIBIT INDEX

 

         

Incorporated by Reference

    

Exhibit
Number

  

Description

  

Schedule
Form

  

File

Number

  

Exhibit

  

Filing Date

  4.1    Amended and Restated Certificate of Incorporation of the Registrant, as currently in effect.    S-1    333- 213569    3.1    September 26, 2016
  4.2    Bylaws of the Registrant, as currently in effect.    S-1    333- 213569    3.3    September 9, 2016
  5.1*    Opinion of Cooley LLP.            
23.1*    Consent of Cooley LLP (included in Exhibit 5.1).            
23.2*    Consent of Ernst & Young LLP, independent registered public accounting firm.            
24.1*    Power of Attorney (included on the signature page of this Form S-8).            
99.1    Everspin Technologies, Inc. 2008 Equity Incentive Plan, as amended, and Form of Stock Option Grant Notice, Option Agreement and Form of Notice of Exercise..    S-1    333- 213569    10.2    September 26, 2016
99.2    Everspin Technologies, Inc. 2016 Equity Incentive Plan and Form of Stock Option Grant Notice, Option Agreement and Form of Notice of Exercise.    S-1    333- 213569    10.3    September 26, 2016
99.3    Everspin Technologies, Inc. 2016 Employee Stock Purchase Plan.    S-1    333- 213569    10.4    September 26, 2016

 

* Filed herewith

Exhibit 5.1

 

LOGO

Matthew B. Hemington

T: +1 650 843 5062

hemingtonmb@cooley.com

October 7, 2016

Everspin Technologies, Inc.

1347 N. Alma School Road, Suite 220

Chandler, AZ 85224

Ladies and Gentlemen:

We have acted as counsel to Everspin Technologies, Inc., a Delaware corporation (the “ Company ”), and you have requested our opinion in connection with the filing of a registration statement on Form S-8 (the “ Registration Statement ”) with the Securities and Exchange Commission covering the offering of up to an aggregate of 1,858,447 of the Company’s Common Stock, par value $0.0001 per share, including (a) 1,262,294 shares of Common Stock (the “ 2008 Shares ”) issuable pursuant to the Company’s 2008 Equity Incentive Plan, as amended (the“ 2008 Plan ”), (b) 500,000 shares of Common Stock (the “ 2016 Shares ”) issuable pursuant to the Company’s 2016 Equity Incentive Plan (the “ 2016 Plan ”), and (c)     96,153 shares of Common Stock (the “ 2016 ESPP Shares ” and together with the 2008 Shares and the 2016 Shares, the “ Shares ”) pursuant to the Company’s 2016 Employee Stock Purchase Plan (the “ 2014 ESPP ” and together with the 2008 Plan and the 2016 Plan, the “ Plans ”).

In connection with this opinion, we have examined and relied upon (a) the Registration Statement and related Prospectuses included therein, (b) the Plans, (c) the Company’s Amended and Restated Certificate of Incorporation and Bylaws, as currently in effect as of the date hereof and (d) such other documents, records, certificates, memoranda and other instruments as we deem are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness and authenticity of all documents submitted to us as originals and the conformity to originals of all documents submitted to us as copies thereof.

As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not sought to independently verify such matters. Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware.

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plans, the Registration Statement and related Prospectuses, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).

 

 

3175 HANOVER STREET, PALO ALTO, CA 94304-1130 T: (650) 843-5000 F: (650) 849-7400 WWW.COOLEY.COM

LOGO

Everspin Technologies, Inc.

Page Two

 

We consent to the filing of this opinion as an exhibit to the Registration Statement.

Sincerely,

Cooley LLP

 

By:  

/s/ Matthew B. Hemington

  Matthew B. Hemington

 

 

3175 HANOVER STREET, PALO ALTO, CA 94304-1130 T: (650) 843-5000 F: (650) 849-7400 WWW.COOLEY.COM

Exhibit 23.2

Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2008 Equity Incentive Plan, the 2016 Equity Incentive Plan, and the 2016 Employee Stock Purchase Plan, of our report dated May 13, 2016, except for the effect of the reverse stock split as described in Note 13, as to which the date is September 21, 2016, with respect to the financial statements of Everspin Technologies, Inc. included in the Registration Statement, as amended (Form S-1 No. 333-213569) and related Prospectus of Everspin Technologies, Inc. filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP            

Phoenix, Arizona

October 6, 2016