UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 29, 2020
Adesto Technologies Corporation
(Exact Name of Registrant as Specified in its Charter)
| Delaware | 001-37582 | 16-1755067 | ||||
|
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) | ||||
|
3600 Peterson Way Santa Clara, California |
95054 | |||||
| (Address of Principal Executive Offices) | (Zip Code) | |||||
Registrant’s Phone Number, including Area Code: (408) 400-0578
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class |
Trading Symbol |
Name of exchange on which registered | ||
| Common Stock, $0.0001 par value per share | IOTS | NASDAQ |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company x
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 13(a) of the Exchange Act. x
Introductory Note
On June 29, 2020, pursuant to the terms of the previously disclosed Agreement and Plan of Merger, dated February 20, 2020 (the “Merger Agreement”), by and among Dialog Semiconductor plc, a company incorporated in England and Wales (“Parent” or “Dialog”), Azara Acquisition Corp., a Delaware corporation and a wholly owned direct or indirect subsidiary of Parent (“Merger Sub”), and Adesto Technologies Corporation, a Delaware corporation (the “Company” or “Adesto”), Merger Sub was merged with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned direct or indirect subsidiary of Parent.
| Item 1.01 | Entry into a Material Definitive Agreement. |
The information set forth in the Introductory Note of this Current Report on Form 8-K is incorporated herein by reference.
The consummation of the Merger constitutes a Share Exchange Event, a Fundamental Change and a Make-Whole Fundamental Change, each as defined in the Indenture, dated as of September 23, 2019 (the “Indenture”), among the Company and U.S. Bank National Association, a national banking association, as trustee (the “Trustee”), relating to the Company’s 4.25% Convertible Notes due 2024 (“Notes”). The effective date of the Share Exchange Event and Fundamental Change is June 29, 2020 (the “Note Effective Date”), the date of the consummation of the Merger. The Indenture was previously filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission (“SEC”) on September 24, 2019.
As a result of the Fundamental Change, each holder of Notes will have the right to require the Company to repurchase its Notes, pursuant to the terms and procedures set forth in the Indenture, for a cash purchase price equal to the Fundamental Change Repurchase Price (as defined in the Indenture). In addition, as a result of the Fundamental Change, Make-Whole Fundamental Change and Share Exchange Event, holders of Notes will have a right to convert their Notes commencing on the Note Effective Date, subject to the terms of the Indenture as supplemented by the First Supplemental Indenture described below.
As a result of the Share Exchange Event, pursuant to the Indenture, the Company and the Trustee executed a supplemental indenture, dated June 29, 2020 (the “First Supplemental Indenture”) to, among other things, change each Note holder’s right to convert Notes for shares of Common Stock of the Company, par value $0.0001 per share (“Adesto Common Stock”) on and after the Note Effective Date into a right to convert Notes for $12.55 in cash, without interest and subject to any required tax withholding (such amount, the “Merger Consideration”). After making the necessary adjustments for the Make-Whole Fundamental Change, each holder of Notes who elects to convert such Notes during the Make-Whole Fundamental Change Period (as defined in the Indenture) will receive an amount equal to 97.2080 multiplied by the Merger Consideration per $1,000 principal amount of Notes.
The foregoing description of the First Supplemental Indenture is qualified in its entirety by reference to the First Supplemental Indenture, which is filed as Exhibit 4.1 hereto and which is incorporated herein by reference. For the avoidance of doubt, the foregoing disclosure does not constitute the Fundamental Change Company Notice (as defined in the Indenture).
| Item 1.02 | Termination of a Material Definitive Agreement. |
The information set forth in the Introductory Note of this Current Report on Form 8-K is incorporated herein by reference.
On June 29, 2020, in connection with the consummation of the Merger, the Company terminated the previously disclosed capped call transactions with each of Credit Suisse Capital LLC and Société Générale (the “Capped Call Transactions”), and, as a result of such early termination, early termination amounts are payable to the Company. The Capped Call Transactions are more fully described in the Company’s Current Report on Form 8-K filed with the SEC on September 24, 2019.
| Item 2.01 | Completion of Acquisition or Disposition of Assets. |
The information set forth in the Introductory Note of this Current Report on Form 8-K is incorporated herein by reference.
Pursuant to the Merger Agreement and subject to the terms and conditions therein, and in accordance with the Delaware General Corporation Law (“DGCL”), at the Effective Time (as defined in the Merger Agreement), each share of Adesto Common Stock, outstanding immediately prior to the Effective Time (other than (i) shares held, directly or indirectly, by any wholly owned subsidiary of the Company, (ii) shares held by the Company (or held in the Company’s treasury) or held, directly or indirectly, by Dialog, Merger Sub or any other wholly owned subsidiary of Dialog and (iii) shares owned by stockholders of the Company who have validly exercised their appraisal rights under the DGCL) was canceled and automatically converted into the right to receive the Merger Consideration.
Additionally, at the Effective Time, the treatment of the stock options to purchase shares of Adesto Common Stock (each, an “Adesto Option”), restricted stock units with respect to shares of Adesto Common Stock (each, an “Adesto RSU”) and performance stock units with respect to shares of Adesto Common Stock (each, an “Adesto PSU”) that were outstanding immediately prior to the Effective Time were treated as follows:
Adesto Options
| • | each outstanding, vested Adesto Option was canceled and converted into the right to receive an amount in cash, without interest, equal to the product of (A) the excess of (x) the Merger Consideration over (y) the exercise price per share of Adesto Common Stock subject to such Adesto Option (such excess, the “Spread”), multiplied by (B) the total number of shares issuable upon the exercise in full of such vested Adesto Option (the “Option Consideration”); |
| • | each outstanding Adesto Option (whether vested or unvested) held by a non-employee director of the Company’s Board of Directors (the “Board”) was canceled and converted into the right to receive the Option Consideration; and |
| • | each outstanding, unvested Adesto Option (other than those held by non-employee directors of the Board) was canceled and, as determined by Parent in accordance with the Merger Agreement, either (i) replaced with a restricted stock unit issued by Dialog (a “Dialog RSU”) with respect to that number of ordinary shares, 10 pence each, of Dialog (each, a “Dialog Ordinary Share”, and collectively the “Dialog Ordinary Shares”) determined by multiplying the number of shares of Adesto Common Stock subject to such unvested Adesto Option immediately before the Effective Time by the Option Exchange Ratio set forth below or (ii) canceled in exchange for a right to payment in cash of an amount equal to the aggregate Spread for each share of Adesto Common Stock underlying such canceled unvested Adesto Option. The Dialog RSU or payment of the Option Consideration, as applicable, is subject to vesting in accordance with the vesting schedule applicable to such unvested Adesto Option immediately prior to the Effective Time, subject to such holder remaining employed by or otherwise in service to Dialog on each applicable vesting date. |
The “Option Exchange Ratio” for each unvested Adesto Option equaled (A) the Spread divided by (B) the average closing sale price for Dialog Ordinary Shares on the Frankfurt Stock Exchange (Xetra) for the six consecutive trading days ending with the complete trading day ending two trading days prior to the date on which the Effective Time occurred (the “Closing Date of the Merger”), expressed in dollars using the average closing mid-point rate for exchanges between euros and dollars quoted by the Wall Street Journal (U.S. Edition) for the trading day that was two trading days prior to the Closing Date of the Merger, rounded to four decimal places (with amounts 0.00005 and above rounded up).
Any Adesto Option (whether vested or unvested) outstanding immediately prior to the Effective Time with a per share exercise price that equaled or exceeded the Merger Consideration was canceled for no consideration at the Effective Time.
Adesto RSUs
| • | each outstanding Adesto RSU (whether vested or unvested) held by a non-employee director of the Board was canceled and converted into a right to receive an amount in cash, without interest, equal to the product of (A) the Merger Consideration multiplied by (B) the total number of shares of Adesto Common Stock subject to such Adesto RSU (the “RSU Consideration”); |
| • | each outstanding, vested Adesto RSU (other than those held by non-employee directors of the Board) was canceled and converted into the right to receive an amount in cash, without interest, equal to the RSU Consideration; |
| • | each outstanding, unvested Adesto RSU (other than those held by non-employee directors of the Board) was canceled and, as determined by Parent in accordance with the Merger Agreement, either (i) replaced with a Dialog RSU with respect to that number of Dialog Ordinary Shares determined by multiplying the number of shares of Adesto Common Stock subject to such unvested Adesto RSU immediately before the Effective Time by the RSU Exchange Ratio set forth below or (ii) canceled in exchange for a right to payment of the RSU Consideration. The Dialog RSU or payment of the RSU Consideration, as applicable, is subject to vesting in accordance with the vesting schedule applicable to such unvested Adesto RSU immediately prior to the Effective Time, subject to such holder remaining employed by or otherwise in service to Dialog on each applicable vesting date. |
The “RSU Exchange Ratio” for each unvested Adesto RSU and unvested Adesto PSU set forth below equaled (A) the Merger Consideration divided by (B) the average closing sale price for Dialog Ordinary Shares on the Frankfurt Stock Exchange (Xetra) for the six consecutive trading days ending with the complete trading day ending two trading days prior to the Closing Date of the Merger, expressed in dollars using the average closing mid-point rate for exchanges between euros and dollars quoted by the Wall Street Journal (U.S. Edition) for the trading day that was two trading days prior to the Closing Date of the Merger, rounded to four decimal places (with amounts 0.00005 and above rounded up).
Adesto PSUs
| • | each outstanding, vested Adesto PSU for which both performance and service-based vesting requirements were satisfied at or prior to the Effective Time was canceled and converted into the right to receive an amount in cash, without interest, equal to the product of (A) the Merger Consideration multiplied by (B) the total number of shares of Adesto Common Stock subject to the Adesto PSU (the “PSU Consideration”); and |
| • | each outstanding, unvested Adesto PSU was canceled and, as determined by Parent in accordance with the Merger Agreement, either (i) replaced with a Dialog RSU with respect to that number of Dialog Ordinary Shares determined by multiplying the number of shares of Adesto Common Stock subject to such unvested Adesto PSU based on the deemed achievement of all relevant performance goals at target level immediately before the Effective Time by the RSU Exchange Ratio or (ii) canceled in exchange for the right to payment of the PSU Consideration based on the deemed achievement of all relevant performance goals at target level. The Dialog RSU or payment of the PSU Consideration, as applicable, is subject to vesting in accordance with the vesting schedule applicable to such unvested Adesto PSU immediately prior to the Effective Time, subject to such holder remaining employed by or otherwise in service to Dialog on each applicable vesting date. |
Any consideration paid in respect of the unvested Adesto PSUs is not subject to any performance-based vesting requirements and is subject solely to the service-based vesting requirements applicable to the applicable unvested Adesto PSU as of immediately prior to the Effective Time.
Further, the Company’s 2015 Employee Stock Purchase Plan (the “ESPP”) was terminated as of immediately prior to the Effective Time. Any accumulated contributions remaining under the ESPP as of immediately prior to the Effective Time will be refunded in cash to each participant under the ESPP as promptly as practicable following the Effective Time (without interest).
The foregoing description of the Merger Agreement and related transactions contemplated by the Merger Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Merger Agreement, a copy of which was previously filed as Exhibit 2.1 to the Current Report on Form 8-K filed by the Company with the SEC on February 20, 2020, and which is incorporated herein by reference as Exhibit 2.1 to this Current Report on Form 8-K.
| Item 2.04 | Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement. |
The information set forth in the Introductory Note and Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
| Item 3.01 | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
The information set forth in the Introductory Note and Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference.
On June 29, 2020, in connection with the consummation of the Merger, Dialog and the Company (i) notified the Nasdaq Stock Market LLC (“Nasdaq”) that the Merger had been consummated, and (ii) requested that Nasdaq (x) suspend trading of the shares of Adesto Common Stock prior to market open on June 29, 2020 and (y) file with the SEC a Form 25 Notification of Removal from Listing and/or Registration to delist and deregister the Shares under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company intends to file with the SEC a certification on Form 15 under the Exchange Act, requesting the deregistration of the Shares and the suspension of the Company’s reporting obligations under Sections 13 and 15(d) of the Exchange Act.
| Item 3.03 | Material Modification to Rights of Security Holders. |
The information set forth in the Introductory Note and Items 2.01, 2.04, 3.01, 5.01 and 5.03 of this Current Report on Form 8-K is incorporated herein by reference.
| Item 5.01 | Changes in Control of Registrant. |
The information set forth in the Introductory Note and Items 2.01, 3.01, 3.03, 5.02 and 5.03 of this Current Report on Form 8-K is incorporated herein by reference.
As a result of the consummation of the Merger under Section 251(a) of the DGCL on June 29, 2020, a change in control of the Company occurred. At the Effective Time, the Company became a wholly owned direct or indirect subsidiary of Parent.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangement of Certain Officers. |
The information set forth in the Introductory Note and Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference.
In accordance with the terms of the Merger Agreement, at the Effective Time, each of Nelson Chan, Narbeh Derhacobian, Hervé Fages, Francis Lee, Kevin Palatnik and Susan Uthayakumar resigned from his or her respective position as a member of the Company’s Board of Directors, and each committee thereof. At the Effective Time, the directors of Merger Sub immediately prior to the Effective Time became the directors of the Company, and all of the Company’s officers voluntarily resigned and ceased to be officers of the Company and the officers of Merger Sub immediately prior to the Effective Time became the officers of the Company.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
The information set forth in the Introductory Note and Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference.
At the Effective Time, the Company’s certificate of incorporation and bylaws were amended and restated in their entirety. Copies of the Company’s amended and restated certificate of incorporation and the Company’s amended and restated bylaws are attached as Exhibits 3.1 and 3.2, respectively, hereto, each of which is incorporated herein by reference.
| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits |
| * | Filed herewith |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| ADESTO TECHNOLOGIES CORPORATION | ||
| Date: June 29, 2020 | By: | /s/ Colin Sturt |
| Colin Sturt | ||
| General Counsel and Secretary | ||
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ADESTO TECHNOLOGIES CORPORATION
ARTICLE I
The name of the Corporation is: Adesto Technologies Corporation (the “Corporation”).
ARTICLE II
The address of the Corporation’s registered office in the State of Delaware is 251 Little Falls Drive, in the City of Wilmington, County of New Castle, Delaware, 19808. The name of its registered agent at such address is: Corporation Service Company.
ARTICLE III
The nature of the business and the purposes to be conducted and promoted by the Corporation are to conduct any lawful business, to promote any lawful purpose and to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “DGCL”).
ARTICLE IV
The total number of shares of stock which the Corporation shall have authority to issue is one thousand (1,000) shares of common stock, $0.001 par value per share (the “Common Stock”). Shares of the Common Stock may be issued from time to time as the Board of Directors of the Corporation (the “Board”) shall determine and on such terms and for such consideration as shall be fixed by the Board. The amount of the authorized Common Stock of the Corporation may be increased or decreased by the affirmative vote of the holders of a majority of the outstanding shares of Common Stock of the Corporation entitled to vote.
ARTICLE V
Elections of directors need not be by written ballot unless required by the Bylaws of the Corporation. Any director may be removed from office either with or without cause at any time by the affirmative vote of the holders of a majority of the outstanding Common Stock of the Corporation entitled to vote, given at a meeting of the stockholders called for that purpose, or by the consent of the holders of a majority of the outstanding Common Stock of the Corporation entitled to vote, given in accordance with DGCL Section 228.
ARTICLE VI
In furtherance and not in limitation of the powers conferred upon the Board by law, the Board shall have the power to make, adopt, alter, amend and repeal from time to time the Bylaws of the Corporation subject to the right of the stockholders entitled to vote with respect thereto to alter, amend and repeal Bylaws made by the Board.
ARTICLE VII
To the fullest extent permitted by law, no director of the Corporation shall be personally liable for monetary damages for breach of fiduciary duty as a director. Without limiting the effect of the preceding sentence, if the DGCL is hereafter amended to authorize the further elimination or limitation of the liability of a director, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. Neither any amendment nor repeal of this Article VII, nor the adoption of any provision of this Amended and Restated Certificate of Incorporation inconsistent with this Article VII, shall eliminate, reduce or otherwise adversely affect any limitation on the personal liability of a director of the Corporation existing at the time of such amendment, repeal or adoption of such an inconsistent provision. The Corporation shall, to the fullest extent permitted by the provisions of DGCL Section 145, as the same may be amended and supplemented from time to time, indemnify any and all persons whom it shall have the power to indemnify under said section from and against any and all of the expenses, liabilities, or other matters referred to in or covered by said section, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person.
Exhibit 3.2
SECOND AMENDED AND RESTATED BYLAWS
of
Adesto Technologies Corporation
TABLE OF CONTENTS
Page
| ARTICLE I Meetings of Stockholders | 1 |
| ARTICLE II Board of Directors | 2 |
| ARTICLE III Committees of the Board | 4 |
| ARTICLE IV Officers | 6 |
| ARTICLE V Execution of Instruments and Deposit of Corporate Funds | 7 |
| ARTICLE VI Record Dates | 8 |
| ARTICLE VII Corporate Seal | 8 |
| ARTICLE VIII Fiscal Year | 8 |
| ARTICLE IX Amendments | 9 |
| ARTICLE X Action Without A Meeting | 9 |
| ARTICLE XI Indemnification | 9 |
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ARTICLE I
Meetings of Stockholders
Section 1.1. Annual Meetings. The annual meeting of the stockholders for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held each year on such date, and at such time and place within or without the State of Delaware, as may be designated by the Board of Directors.
Section 1.2. Special Meetings. Special meetings of the stockholders for any proper purpose or purposes may be called at any time by the Board of Directors to be held on such date, and at such time and place within or without the State of Delaware, as the Board of Directors shall direct. A special meeting of the stockholders shall be called by the president or the secretary of the Corporation whenever stockholders owning a majority of the shares of the Corporation then issued and outstanding and entitled to vote on matters to be submitted to stockholders of the Corporation shall make application therefor in writing. Any such written request shall state a proper purpose or purposes of the meeting and shall be delivered to the president or the secretary of the Corporation.
Section 1.3. Notice of Meeting. Written notice, signed by the president, the secretary or any assistant secretary of the Corporation, of every meeting of stockholders stating the date and time when, and the place where, such meeting is to be held, shall be delivered either personally or by mail to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of such meeting, except as otherwise provided by law. The purpose or purposes for which such meeting is called may, in the case of an annual meeting, and shall in the case of a special meeting, also be stated in such notice. If mailed, such notice shall be directed to a stockholder at such stockholder’s address as it shall appear on the stock books of the Corporation, unless such stockholder shall have filed with the president or secretary of the Corporation a written request that notices intended for such stockholder be mailed to some other address, in which case it shall be mailed to the address designated in such request. Whenever any notice is required to be given under the provisions of the General Corporation Law of the State of Delaware, the Certificate of Incorporation or these Second Amended and Restated Bylaws, a waiver thereof, signed by the stockholder entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent thereto. Attendance of a stockholder at the meeting shall be deemed equivalent to a written waiver of notice of such meeting.
Section 1.4. Quorum. The presence at any meeting of stockholders, in person or by proxy, of the holders of record of a majority of the shares then issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of business, except as otherwise provided by law.
Section 1.5. Adjournments. In the absence of a quorum, a majority in interest of the stockholders entitled to vote, present in person or by proxy, or, if no stockholder entitled to vote is present in person or by proxy, any officer entitled to preside at or act as secretary of a meeting of stockholders, may adjourn such meeting from time to time until a quorum shall be present.
Section 1.6. Voting. Directors shall be chosen by a plurality of the votes cast at the election, and, except as otherwise provided by law or by the Certificate of Incorporation, all other questions shall be determined by a majority of the votes cast on such question.
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Section 1.7. Proxies. Any stockholder entitled to vote may vote by proxy, provided that the instrument authorizing such proxy to act shall have been executed in writing (which shall include telegraphing or cabling) by the stockholder himself or by such stockholder’s duly authorized attorney.
Section 1.8. Judges of Election. The Board of Directors may appoint judges of election to serve at any election of directors and at balloting on any other matter that may properly come before a meeting of stockholders. If no such appointment shall be made, or if any of the judges so appointed shall fail to attend, or refuse or be unable to serve, then such appointment may be made by the presiding officer at the meeting.
ARTICLE II
Board of Directors
Section 2.1. Number. The number of directors which shall constitute the whole Board of Directors shall be fixed from time to time by resolution of the Board of Directors or stockholders (any such resolution of either the Board of Directors or stockholders being subject to any later resolution of either of them). The first Board of Directors and subsequent Boards of Directors shall consist of three directors until changed as herein provided.
Section 2.2. Election and Term of Office. Directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2.3. Each director (whether elected at an annual meeting or to fill a vacancy or otherwise) shall continue in office until such Director’s successor shall have been elected and qualified or until such Director’s earlier death, resignation or removal in the manner hereinafter provided.
Section 2.3. Vacancies and Additional Directorships. If any vacancy shall occur among the directors by reason of death, resignation or removal, or as the result of an increase in the number of directorships, a majority of the directors then in office, or a sole remaining director, though less than a quorum, may fill any such vacancy.
Section 2.4. Regular Meetings. A regular meeting of the Board of Directors shall be held for organization, for the election of officers and for the transaction of such other business as may properly come before such meeting, within thirty days after each annual meeting of stockholders. The Board of Directors by resolution may provide for the holding of other regular meetings and may fix the times and places at which such meetings shall be held. Notice of regular meetings shall not be required to be given, provided that whenever the time or place of regular meetings shall be fixed or changed, notice of such action shall be mailed promptly to each director who shall not have been present at the meeting at which such action was taken, addressed to such director at such director’s residence or usual place of business.
Section 2.5. Special Meetings. Special meetings of the Board of Directors shall be held upon call by or at the direction of the president or the secretary of the Corporation.Except as otherwise required by law, notice of each special meeting shall be mailed to each director, addressed to such director at such director’s residence or usual place of business, at least two days before the day on which the meeting is to be held, or shall be sent to such director at such place by telex, facsimile transmission, telegram, radio or cable, or telephoned or delivered to him personally, not later than the day before the day on which the meeting is to be held. Such notice shall state the time and place of such meeting, but need not state the purposes thereof, unless otherwise required by law, the Certificate of Incorporation or these Second Amended and Restated Bylaws.
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Section 2.6. Waiver of Notice. Whenever any notice is required to be given under the provisions of the General Corporation Law of the State of Delaware, the Certificate of Incorporation or these Second Amended and Restated Bylaws, a waiver thereof, signed by the director entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent thereto. Attendance of a director at a meeting shall be deemed equivalent to a written waiver of notice of such meeting.
Section 2.7. Quorum and Manner of Acting. At each meeting of the Board of Directors the presence of a majority of the total number of members of the Board of Directors as constituted from time to time shall be necessary and sufficient to constitute a quorum for the transaction of business, except that when the Board of Directors consists of one or two directors, then the one or two directors, respectively, shall constitute a quorum. In the absence of a quorum, a majority of those present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present and the meeting may be held as so adjourned without further notice or waiver. A majority of those present at any meeting at which a quorum is present may decide any question brought before such meeting, except as otherwise provided by law, the Certificate of Incorporation or these Second Amended and Restated Bylaws. The Board of Directors may also act without a meeting so long as such action is taken with the unanimous written consent of the Board of Directors.
Section 2.8. Telephonic Meetings. Unless otherwise restricted by the Certificate of Incorporation or these Second Amended and Restated Bylaws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or such committee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
Section 2.9. Resignation of Directors. Any director may resign at any time by giving written notice of such resignation to the Board of Directors. Unless otherwise specified in such notice, such resignation shall take effect upon receipt thereof by the Board of Directors or any such officer, and the acceptance of such resignation shall not be necessary to make it effective.
Section 2.10. Removal of Directors. At any special meeting of the stockholders, duly called as provided in these Second Amended and Restated Bylaws, any director or directors may be removed from office, either with or without cause, as provided by law. At such meeting a successor or successors may be elected by a plurality of the votes cast, or if any such vacancy is not so filled, it may be filled by the directors as provided in Section 2.3.
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Section 2.11. Compensation of Directors. Directors shall receive such reasonable compensation for their services whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 2.12. General Powers. The Board of Directors shall have all powers necessary or appropriate to the management of the business and affairs of the Corporation, and, in addition to the power and authority conferred by these Second Amended and Restated Bylaws, may exercise all powers of the Corporation and do all such lawful acts and things as are not by statute, these Second Amended and Restated Bylaws or the Certificate of Incorporation directed or required to be exercised or done by the stockholders. Notwithstanding anything in these Second Amended and Restated Bylaws to the contrary, except to the extent prohibited by law, the Board of Directors shall have the right (which, to the extent exercised, shall be exclusive) to establish the rights, powers, duties, rules and procedures that from time to time shall govern the Board of Directors and each of its members, including without limitation, the vote required for any action by the Board of Directors, and that from time to time shall affect the directors’ power to manage the business and affairs of the Corporation; and no Second Amended and Restated Bylaw shall be adopted by stockholders which shall impair or impede the implementation of the foregoing.
ARTICLE III
Committees of the Board
Section 3.1. Designation, Power, Alternate Members and Term of Office. The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Any such committee, to the extent provided in such resolution and permitted by law, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation or a facsimile thereof to be affixed to or reproduced on all such papers as said committee shall designate. The Board of Directors may designate one or more directors as alternate members of any committee who, in the order specified by the Board of Directors, may replace any absent or disqualified member at any meeting of such committee. If at a meeting of any committee one or more of the members thereof should be absent or disqualified, and if either the Board of Directors has not so designated any alternate member or members, or the number of absent or disqualified members exceeds the number of alternate members who are present at such meeting, then the member or members of such committee (including alternates) present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another director to act at such meeting in the place of any such absent or disqualified member. The term of office of the members of each committee shall be as fixed from time to time by the Board of Directors, subject to these Second Amended and Restated Bylaws; provided, however, that any committee member who ceases to be a member of the Board of Directors shall ipso facto cease to be a committee member. Each committee shall appoint a secretary, who may be a Director or an officer of the Corporation.
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Section 3.2. Executive Committee. If an Executive Committee is designated by the Board of Directors in accordance with the provisions of Section 3.1 hereof, the Executive Committee shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but the Executive Committee shall not have power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation’s property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, amending the bylaws of the Corporation, declaring a dividend or authorizing the issuance of stock. The provisions of Article III of these Second Amended and Restated Bylaws shall apply to the Executive Committee.
Section 3.3. Meetings, Notices and Records. Each committee may provide for the holding of regular meetings, with or without notice, and may fix the times and places at which such meetings shall be held. Special meetings of each committee shall be held upon call by or at the direction of its chairman or, if there be no chairman, by or at the direction of any one of its members. Except as otherwise provided by law, notice of each special meeting of a committee shall be mailed to each member of such committee, addressed to such member at such member’s residence or usual place of business, at least two days before the day on which the meeting is to be held, or shall be sent to him at such place by telex, facsimile transmission, telegram, radio or cable, or telephoned or delivered to such member personally, not later than the day before the day on which the meeting is to be held. Such notice shall state the time and place of such meeting, but need not state the purposes thereof, unless otherwise required by law, the Certificate of Incorporation of the Corporation or these Second Amended and Restated Bylaws. Notice of any meeting of a committee need not be given to any member thereof who shall attend such meeting in person or who shall waive notice thereof, before or after such meeting, in a signed writing. Each committee shall keep a record of its proceedings.
Section 3.4. Quorum and Manner of Acting. At each meeting of any committee the presence of a majority of its members then in office shall be necessary and sufficient to constitute a quorum for the transaction of business, except that when a committee consists of one member, then the one member shall constitute a quorum. In the absence of a quorum, a majority of the members present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present and the meeting may be held as so adjourned without further notice or waiver. The act of a majority of the members present at any meeting at which a quorum is present shall be the act of such committee. Subject to the foregoing and other provisions of these Second Amended and Restated Bylaws and except as otherwise determined by the Board of Directors, each committee may make rules for the conduct of its business.
Section 3.5. Resignations. Any member of a committee may resign at any time by giving written notice of such resignation to the Board of Directors. Unless otherwise specified in such notice, such resignation shall take effect upon receipt thereof by the Board of Directors or any such officer, and the acceptance of such resignation shall not be necessary to make it effective.
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Section 3.6. Removal. Any member of any committee may be removed at any time with or without cause by the Board of Directors.
Section 3.7. Vacancies. If any vacancy shall occur in any committee by reason of death, resignation, disqualification, removal or otherwise, the remaining member or members of such committee, so long as a quorum is present, may continue to act until such vacancy is filled by the Board of Directors.
Section 3.8. Compensation. Committee members shall receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any committee member from serving the Corporation in any other capacity and receiving compensation therefor.
ARTICLE IV
Officers
Section 4.1. Officers. The Corporation shall have such officers as are appointed from time to time by the Board of Directors.
Section 4.2. Election, Term of Office and Qualifications. Each officer (except such officers as may be appointed in accordance with the provisions of Section 4.3) shall be elected by the Board of Directors. Each such officer shall hold such office until such officer’s successor shall have been elected and shall qualify, or until such officer’s death, or until such officer shall have resigned in the manner provided in Section 4.4 or shall have been removed in the manner provided in Section 4.5.
Section 4.3. Subordinate Officers and Agents. The Board of Directors may delegate to any officer or agent the power to appoint any subordinate officers or agents and to prescribe their respective terms of office, authorities and duties.
Section 4.4. Resignations. Any officer may resign at any time by giving written notice of such resignation to the Board of Directors. Unless otherwise specified in such written notice, such resignation shall take effect upon receipt thereof by the Board of Directors, and the acceptance of such resignation shall not be necessary to make it effective.
Section 4.5. Removal. Any officer may be removed with or without cause at any meeting of the Board of Directors by affirmative vote of a majority of the directors then in office. Any officer or agent appointed in accordance with the provisions of Section 4.3 may be removed with or without cause at any meeting of the Board of Directors by affirmative vote of a majority of the directors present at such meeting, or at any time by any superior officer or agent upon whom such power of removal shall have been conferred by the Board of Directors.
Section 4.6. Vacancies. A vacancy in any office by reason of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed by these Second Amended and Restated Bylaws for regular election or appointment to such office.
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Section 4.7. General Duties of Officers. Each officer shall perform those duties and have such powers as from time to time may be assigned to him by the Board of Directors.
Section 4.8. Salaries. The salaries of the officers of the Corporation shall be fixed from time to time by the Board of Directors, except that the Board of Directors may delegate to any person the power to fix the salaries or other compensation of any officers or agents appointed in accordance with the provisions of Section 4.3. No officer shall be prevented from receiving such salary by reason of the fact that such officer is also a director of the Corporation.
ARTICLE V
Execution of Instruments and Deposit of Corporate Funds
Section 5.1. Execution of Instruments Generally. The Board of Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation, and such authorization may be general or confined to specific instances.
Section 5.2. Borrowing. No loans or advance shall be obtained or contracted for, by or on behalf of the Corporation and no negotiable paper shall be issued in its name, unless and except as authorized by the Board of Directors. Such authorization may be general or confined to specific instances. Any officer or agent of the Corporation thereunto so authorized may obtain loans and advances for the Corporation, and for such loans and advances may make, execute and deliver promissory notes, bonds, or other evidences of indebtedness of the Corporation. Any officer or agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer as security for the payment of any and all loans, advances, indebtedness and liabilities of the Corporation, any and all stocks, bonds, other securities and other personal property at any time held by the Corporation, and to that end may endorse, assign and deliver the same and do every act and thing necessary or proper in connection therewith.
Section 5.3. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to its credit in such banks or trust companies or with such bankers or other depositaries as the Board of Directors may select, or as may be selected by any officer or officers or agent or agents authorized so to do by the Board of Directors. Endorsements for deposit to the credit of the Corporation in any of its duly authorized depositaries shall be made in such manner as the Board of Directors from time to time may determine.
Section 5.4. Checks, Drafts, etc. All checks, drafts or other orders for the payment of money, and all notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers or agent or agents of the Corporation, and in such manner, as from time to time shall be determined by the Board of Directors.
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Section 5.5. Proxies. Proxies to vote with respect to shares of stock of other corporations owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by the President or by any other person or persons thereunto authorized by the Board of Directors.
Section 5.6. Other Contracts and Instruments. All other contracts and instruments binding the Corporation shall be executed in the name and on the behalf of the Corporation by those officers, employees or agents of the Corporation as may be authorized by the board of Directors. That authorization may be general or confirmed to specific instances.
ARTICLE VI
Record Dates
Section 6.1 In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall be not more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. Only those stockholders of record on the date so fixed shall be entitled to any of the foregoing rights, notwithstanding the transfer of any such stock on the books of the Corporation after any such record date fixed by the Board of Directors.
ARTICLE VII
Corporate Seal
Section 7.1 The corporate seal shall be circular in form and shall bear the name of the Corporation and words and figures denoting its organization under the laws of the State of Delaware and the year thereof and otherwise shall be in such form as shall be approved from time to time by the Board of Directors.
ARTICLE VIII
Fiscal Year
Section 8.1 The fiscal year of the Corporation shall end on December 31 of each calendar year.
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ARTICLE IX
Amendments
Section 9.1 All bylaws of the Corporation may be amended or repealed, and new bylaws may be made, by an affirmative majority of the votes cast at any annual or special stockholders’ meeting by holders of outstanding shares of stock of the Corporation entitled to vote, or by an affirmative vote of a majority of the directors present at any organizational, regular, or special meeting of the Board of Directors.
ARTICLE X
Action Without A Meeting
Section 10.1 Any action which might have been taken under these Second Amended and Restated Bylaws by a vote of the stockholders at a meeting thereof may be taken without a meeting, without prior notice and without a vote, if a consent in writing setting forth the action so taken, shall be individually signed by the holders of outstanding shares of stock of the Corporation having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Any action which might have been taken under these Second Amended and Restated Bylaws by vote of the directors at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all the members of the Board of Directors or such committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of the Board of Directors or such committee.
ARTICLE XI
Indemnification
Section 11.1 The Corporation shall 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 he 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, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he 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 conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he 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 reasonably cause to believe that his conduct was unlawful.
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Section 11.2 The Corporation shall 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 he 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, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and except that no such indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Corporation unless and only to the extent that the Court of Chancery of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such Court of Chancery or such other court shall deem proper.
Section 11.3 To the extent that a director, officer, employee or agent of the Corporation shall be successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 11.1 and Section 11.2 or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.
Section 11.4 Any indemnification under Section 11.1 and Section 11.2 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 11.1 and Section 11.2. Such determination shall be made: (a) by the Board of Directors by a majority; vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (b) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion; or (c) by the stockholders. The Corporation, acting through its Board of Directors or otherwise, shall cause such determination to be made if so requested by any person who is indemnifiable under this Article XI.
Section 11.5 Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board of Directors in the manner provided in Section 11.4 upon receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the Corporation as authorized in this Article XI.
Section 11.6 The indemnification provided by this Article XI shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such person.
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Section 11.7 The Board of Directors may authorize, by a vote of a majority of a quorum of the Board of Directors, the Corporation to purchase and maintain insurance on behalf of any person who 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, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article XI.
Section 11.8 For the purposes of this Article XI, reference to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article XI with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued.
Section 11.9 For purposes of this Article XI references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the Corporation” shall include service as a director, officer, employee or agent of the Corporation which imposes duties upon, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article XI.
Section 11.10 The indemnification and advancement of expenses provided by, or granted pursuant to, this Article XI shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such person.
Section 11.11 The Corporation shall be required to indemnify a person in connection with an action, suit or proceeding (or part thereof) initiated by such person only if the action, suit or proceeding (or part thereof) was authorized by the Board of Directors of the Corporation.
Section 11.12 If a claim for indemnification or advancement of expenses under this Article XI is not paid in full within 60 days after a written claim therefor has been received by the Corporation the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim to the fullest extent permitted by law. In any such action the Corporation shall have the burden of proving that the claimant was not entitled to the requested indemnification or payment of expenses under applicable law.
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Exhibit 4.1
ADESTO TECHNOLOGIES CORPORATION,
AS COMPANY,
and
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE
First Supplemental Indenture
Dated as of June 29, 2020
to the
Indenture
Dated as of September 23, 2019
FIRST SUPPLEMENTAL INDENTURE
This FIRST SUPPLEMENTAL INDENTURE (this “First Supplemental Indenture”), dated as of June 29, 2020, is by and between Adesto Technologies Corporation, a Delaware corporation (the “Company”), and U.S. Bank National Association, a national banking association, as trustee (the “Trustee”).
RECITALS:
WHEREAS, the Company and the Trustee have heretofore entered into that certain Indenture, dated as of September 23, 2019 (the “Indenture”), to provide for the issuance of up to $80,500,000 aggregate principal amount of the Company’s 4.25% Convertible Senior Notes due 2024 (the “Notes”);
WHEREAS, the Company, Dialog Semiconductor plc, a company incorporated in England and Wales (“Parent”), and Azara Acquisition Corp., a Delaware corporation and a wholly owned direct or indirect subsidiary of Parent (“Merger Sub”), entered into an Agreement and Plan of Merger, dated as of February 20, 2020 (the “Merger Agreement”), pursuant to which Merger Sub will be merged with and into the Company (the “Merger”), with the Company continuing as the surviving corporation;
WHEREAS, the Merger constitutes a Fundamental Change and a Make-Whole Fundamental Change;
WHEREAS, pursuant to the Merger Agreement and subject to the terms and conditions therein, at the Effective Time (as defined in the Merger Agreement), each share of Common Stock of the Company (“Common Stock”) outstanding immediately prior to the Effective Time (other than (i) shares of Common Stock held, directly or indirectly, by a wholly owned subsidiary of the Company, (ii) shares of Common Stock to be cancelled in accordance with Section 1.5(a)(ii) of the Merger Agreement and (iii) Dissenting Shares (as defined in the Merger Agreement)) will be converted automatically into the right to receive $12.55 per share in cash, without interest (the “Merger Consideration”);
WHEREAS, Article 11 of the Indenture permits the Company to merge with and into another Person so long as certain conditions have been met;
WHEREAS, Section 14.07 of the Indenture provides, among other things, that if there occurs any Share Exchange Event, including a merger involving the Company, as a result of which the Common Stock represents solely the right to receive stock, other securities or other property or assets (including cash or any combination thereof), then, at and after the effective time of such Share Exchange Event, the right to convert each $1,000 principal amount of the Notes shall be changed into a right to convert such principal amount of the Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Share Exchange Event would have owned or been entitled to receive (the “Reference Property”) upon such Share Exchange Event;
WHEREAS, Section 14.07 of the Indenture provides that prior to or at the effective time of such Share Exchange Event, the Company will execute with the Trustee a supplemental indenture providing for such change in the right to convert each $1,000 principal amount of the Notes; provided, however, that at and after the effective time of the Share Exchange Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of the Notes in accordance with Section 14.02 of the Indenture and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 14.02 of the Indenture shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 14.02 of the Indenture will instead be deliverable in the amount and type of the Reference Property that a holder of that number of shares of Common Stock would have received in such Share Exchange Event and (III) the Daily VWAP shall be calculated based on the value of a unit of the Reference Property;
WHEREAS, pursuant to Section 14.07 of the Indenture, the Reference Property shall consist of the Merger Consideration;
WHEREAS, the Company may consolidate with, merge with or into, or sell, convey, transfer or lease all or substantially all of its consolidated properties and assets to another Person subject to the provisions of Section 11.01 of the Indenture;
WHEREAS, Section 10.01 of the Indenture provides that, without the consent of any of the Holders of the Notes, the Company and the Trustee may execute a supplemental indenture in connection with any Share Exchange Event to provide that the Notes are convertible into the Reference Property, subject to the provisions of Section 14.02 of the Indenture and in accordance with Section 14.07 of the Indenture;
WHEREAS, all conditions for the execution and delivery of this First Supplemental Indenture have been complied with or have been done or performed; and
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions.
For all purposes of this First Supplemental Indenture, except as otherwise herein expressly provided or unless the context otherwise requires: (i) the capitalized terms and expressions used herein shall have the same meanings as corresponding terms and expressions used in the Indenture and (ii) the words “herein,” “hereof” and “hereby” and other words of similar import used in this First Supplemental Indenture refer to this First Supplemental Indenture as a whole and not to any particular section hereof.
For the purposes of this First Supplemental Indenture, a “unit of Reference Property” shall mean $12.55 in cash, without interest.
ARTICLE 2
AMENDMENT OF INDENTURE
Section 2.01 Conversion Obligation. In accordance with Sections 14.01 and 14.07 of the Indenture, as a result of the Merger, from and after the effective time of the Merger, the Indenture is hereby amended such that the Conversion Obligation due upon conversion of any Note, and the conditions to any such conversion, shall be determined in the same manner as if each reference to any number of Common Stock in Article 14 (or any related definitions) of the Indenture is a reference to the same number of units of Reference Property.
Section 2.02 Conversion of the Notes. In accordance with and subject to Sections 14.02(a) and 14.07 of the Indenture, as a result of the Merger, (i) from and after the effective time of the Merger, each $1,000 in principal amount of the Notes is, at and after the effective time of the Merger, convertible in accordance with the terms of the Indenture into the Reference Property, which shall consist of cash in an amount equal to the Conversion Rate in effect on the applicable Conversion Date multiplied by the price paid per share of outstanding Common Stock in the Merger, which shall initially be cash in the amount of $1,045.44 per $1,000 principal amount of Notes (prior to any adjustment contemplated pursuant to the last sentence of this Section 2.02) and (ii) the Company shall satisfy its Conversion Obligation by paying cash to the converting Holders on the second Business Day immediately following the relevant Conversion Date. As a result of the Merger, a Make-Whole Fundamental Change has occurred and the Conversion Rate has been adjusted pursuant to Section 14.03 during the Make-Whole Fundamental Change Period to 97.2080. Accordingly, a Holder shall be entitled to receive a total of $1,219.96 of cash upon conversion of $1,000 principal amount of Notes during the Make-Whole Fundamental Change Period.
ARTICLE 3
MISCELLANEOUS
Section 3.01 Severability.
In the event any provision of this First Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired.
Section 3.02 Modification, Amendment and Waiver.
The provisions of this First Supplemental Indenture may not be amended, supplemented, modified or waived, unless otherwise provided in the Indenture, except by the execution of a supplemental indenture in compliance with Article 10 of the Indenture.
Section 3.03 Ratification of Indenture; First Supplemental Indenture Part of the Indenture.
Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. In the event of a conflict between the terms and conditions of the Indenture and the terms and conditions of this First Supplemental Indenture, then the terms and conditions of the Indenture shall prevail. This First Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby. The First Supplemental Indenture shall become effective simultaneously with the effective time of the Merger.
Section 3.04 [Reserved.]
Section 3.05 Governing Law.
THIS FIRST SUPPLEMENTAL INDENTURE AND THE NOTES, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS FIRST SUPPLEMENTAL INDENTURE AND EACH NOTE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 3.06 Trustee Makes No Representation.
The Trustee makes no representations as to the validity or sufficiency of this First Supplemental Indenture. The recitals and statements contained in this First Supplemental Indenture shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same.
Section 3.07 Multiple Counterparts.
This First Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this First Supplemental Indenture and of signature pages by facsimile, PDF or other electronic transmission shall constitute effective execution and delivery of this First Supplemental Indenture as to the parties hereto and may be used in lieu of the original First Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile, PDF or other electronic transmission shall be deemed to be their original signatures for all purposes.
Section 3.08 Headings.
The titles and headings of the articles and sections of this First Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 3.09 Successors.
All agreements of the Company in this First Supplemental Indenture shall bind its successors. All agreements of the Trustee in this First Supplemental Indenture shall bind its successor.
Section 3.10 No Defaults.
Immediately after giving effect to the Share Exchange Event contemplated under this First Supplemental Indenture, the Company represents and warrants that no Default or Event of Default shall have occurred or be continuing.
Section 3.11 No Security Interest Created.
Nothing in this First Supplemental Indenture or in the Notes, expressed or implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction.
Section 3.12 Benefits of Indenture.
Nothing in this First Supplemental Indenture or in the Notes, expressed or implied, shall give to any Person, other than the Holders, the parties hereto, any Paying Agent, any Conversion Agent, any authenticating agent, any Note Registrar and their respective successors hereunder, any benefit or any legal or equitable right, remedy or claim under this First Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as of the date and year first above written.
| ADESTO TECHNOLOGIES CORPORATION | |||
| By: | /s/ Ron Shelton | ||
| Name: | Ron Shelton | ||
| Title: | Chief Financial Officer | ||
Signature Page to First Supplemental Indenture
| U.S. BANK NATIONAL ASSOCIATION, as Trustee | |||
| By: | /s/ Bradley E. Scarbrough | ||
| Name: | Bradley E. Scarbrough | ||
| Title: | Vice President | ||
Signature Page to First Supplemental Indenture