As filed with the Securities and Exchange Commission on November 14, 2014
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________
ADEPT TECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
|
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
|
94-2900635
(I.R.S. Employer Identification No.)
|
|
5960 Inglewood Drive
Pleasanton, CA
(Address of Principal Executive Offices)
|
94588
(Zip Code)
|
|
2005 Equity Incentive Plan, as amended
(Full title of the Plan)
______________________
Seth Halio
Chief Financial Officer
Adept Technology, Inc.
5960 Inglewood Drive
Pleasanton, CA 94588
(Name and Address of Agent for Service)
(925) 245-3400
(Telephone number, including area code, of agent for service)
______________________
Copies to:
Lisa A. Fontenot, Esq.
Gibson, Dunn & Crutcher LLP
1881 Page Mill Road
Palo Alto, California 94304
(650) 849-5300
|
|
CALCULATION OF REGISTRATION FEE
|
|
Title of Securities
to be Registered
|
|
Amount to be Registered (1)
|
|
Proposed Maximum
Offering Price per Share
|
|
Proposed Maximum
Aggregate Offering Price
|
|
Amount of
Registration Fee
|
|
Common Stock, $0.001 par value per share
|
|
400,000 shares
|
|
$8.32(2)
|
|
$3,328,000(2)
|
|
$386.71
|
| (1) |
Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, covers additional securities that may be offered as a result of stock splits, stock dividends or similar transactions without the receipt of consideration which result in an increase in the number of the Registrant’s outstanding shares of Common Stock. |
| (2) |
The maximum offering price per share and the maximum aggregate offering price are estimated solely for the purpose of determining the registration fee pursuant to Rule 457(c) and Rule 457(h) under the Securities Act based upon the average of the high and low trading price as reported on The Nasdaq Capital Market on November 10, 2014, which was $8.32.
|
INTRODUCTION
This Registration Statement on Form S-8 is filed by Adept Technology, Inc., a Delaware corporation (“Adept” or “Registrant”), relating to 400,000 shares of its common stock, $0.001 par value per share (the “Common Stock”) issuable to eligible participants in accordance with the terms of the 2005 Equity Incentive Plan, as amended (the “2005 Plan”). On each of November 14, 2011, November 9, 2009, November 15, 2007 and December 9, 2005, Adept filed with the Securities and Exchange Commission (the “Commission”) registration statements on Form S-8 (Registration Nos. 333-177952, 333-162973, 333-147423 and 333-130235) (collectively, the “Prior Registration Statements”) relating to shares of Common Stock issuable to eligible participants of Adept under the 2005 Plan. The Prior Registration Statements are currently effective. This Registration Statement relates to securities of the same class as those to which the Prior Registration Statements relate. Pursuant to Instruction E of Form S-8, the contents of the Prior Registration Statements are incorporated herein by reference and made part of this Registration Statement on Form S-8.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to the instructions to Form S-8, Part I (Information Required in the Section 10(a) Prospectus) is not filed as part of this Registration Statement or incorporated by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed with the Commission:
|
|
(a)
|
The Registrant’s Annual Report on Form 10-K for the fiscal year ended June 30, 2014, including all Part III information incorporated by reference therein;
|
|
|
(b)
|
The Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 27, 2014;
|
|
|
(c)
|
The Registrant’s Current Report on Form 8-K filed with the Commission on July 2, 2014;
|
|
|
(d)
|
All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since the end of the fiscal year covered by the Annual Report referred to in (a) above; and
|
|
|
(e)
|
The description of the Registrant’s Common Stock contained in the Registration Statement on Form 8-A filed with the Commission on October 31, 1995 pursuant to Section 12(g) of the Exchange Act, including the Registrant’s Current Report on Form 8-K12G3 filed on November 10, 2005 and any amendment or report filed for the purpose of updating such description.
|
All documents filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents, provided, however, that the Registrant is not incorporating any information furnished under either Item 2.02 or Item 7.01 of any Current Report on Form 8-K.
Any document, and 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 other subsequently filed document that also is incorporated or deemed to be incorporated by reference herein, modifies or supersedes such document or statement. Any such document or statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Subject to the foregoing, all information appearing in this Registration Statement is qualified in its entirety by the information appearing in the documents incorporated by reference.
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 (the “DGCL”) permits a corporation to indemnify any of its directors and officers who was or is a party or is threatened to be made a party to any third party proceeding by reason of the fact that such person is or was a director or officer of the corporation against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, if such person acted in good faith and in a manner such person 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 that such person’s conduct was unlawful. In a derivative action (i.e., an action by or in the right of a corporation), a corporation is permitted to indemnify any of its directors and officers for expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made if such person shall have been adjudged liable to the corporation, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that such person is fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability.
As permitted by Section 102(b)(7) of the DGCL, the Registrant’s Certificate of Incorporation (the “Charter”) provides that, to the fullest extent permitted by the DGCL, a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) in respect of certain unlawful dividend payments or stock redemptions or repurchases, or (iv) for any transaction from which the director derived an improper personal benefit. In addition, the Charter provides that, to the fullest extent permitted by applicable law, the Registrant is authorized to provide indemnification of and advancement of expenses to directors, officers, employees and other agents of the Registrant through bylaw provisions, agreements with such persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement of expenses otherwise permitted by Section 145 of the DGCL, subject only to the limits created by applicable Delaware law (statutory or non-statutory), with respect to actions for breach of duty to a corporation, its stockholders and others.
As permitted by Section 145 of the DGCL, the Registrant’s Bylaws (the “Bylaws”) provide that: (a) the Registrant is required, to the maximum extent and in the manner permitted by the DGCL, to indemnify each of its directors and officers and persons serving in such capacities in other business entities (including, for example, subsidiaries of the Registrant) against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding; (b) the rights to indemnification conferred in the Bylaws are not exclusive and the Registrant is authorized to enter into indemnification agreements with such directors and officers; (c) the Registrant is authorized to maintain director and officer liability insurance to protect itself and any director or officer of the Registrant against any expense, liability or loss, whether or not the Registrant would have the power to indemnify such person against such expense, liability or loss under the DGCL; and (d) any amendment, repeal or modification of the indemnifications provisions contained in the Bylaws that adversely affects any right of an indemnitee shall be prospective only.
In addition to the above, the Registrant enters into indemnification agreements with its directors and officers. The indemnification agreements provide directors and officers with the same indemnification and advancement of expenses by the Registrant as described above and to the fullest extent permitted by future Delaware law that expands the permissible scope of indemnification. The Registrant also provides insurance pursuant to which directors and directors are indemnified or insured against liability or loss under certain circumstances.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
A list of exhibits filed with this Registration Statement is set forth in the Exhibit Index and is incorporated herein by reference.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act”);
(ii) To reflect in the prospectus any facts or events arising after the effective date of this 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 this 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 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that clauses (A)(1)(i) and (A)(1)(ii) shall not apply if the information required to be included in a post-effective amendment by those clauses 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 into this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold upon the termination of the offering;
(4) That, for the purpose of determining liability under the Securities Act to any purchaser: each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use; and
(5) 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 Registrant undertakes that in a primary offering of securities of the 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 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 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 Registrant or used or referred to by the Registrant; (iii) the portion of any other free writing prospectus relating to the offering containing material information about the Registrant or its securities provided by or on behalf of the Registrant; and (iv) any other communication that is an offer in the offering made by the Registrant to the purchaser.
B. 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 that is incorporated by reference into this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing indemnity provisions in Item 6, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, 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 the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8, and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Pleasanton, State of California, on November 14, 2014.
| |
ADEPT TECHNOLOGY, INC.
(Registrant)
|
| |
|
|
| |
|
|
| |
By: |
/s/ Seth Halio
|
| |
|
Seth Halio
Chief Financial Officer
|
POWER OF ATTORNEY
Each of the undersigned hereby constitutes and appoints each of Rob Cain and Seth Halio as his or her attorney-in-fact, with power of substitution, in his or her name and in the capacity indicated below, to sign any and all further amendments (including post-effective amendments) to this Registration Statement on Form S-8 and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorney-in-fact, or his or her substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
|
Name and Signature
|
|
Title
|
|
Date
|
| |
|
|
|
|
|
/s/ Rob Cain
|
|
Director; President and Chief Executive
|
|
November 14, 2014
|
|
Rob Cain
|
|
Officer (Principal Executive Officer) |
|
|
| |
|
|
|
|
|
/s/ Seth Halio
|
|
Chief Financial Officer (Principal Financial
|
|
November 14, 2014
|
|
Seth Halio
|
|
and Accounting Officer) |
|
|
| |
|
|
|
|
|
/s/ Benjamin A. Burditt
|
|
Director
|
|
November 14, 2014
|
|
Benjamin A. Burditt
|
|
|
|
|
| |
|
|
|
|
|
/s/ Martin M. Hale
|
|
Director
|
|
November 14, 2014
|
|
Martin M. Hale
|
|
|
|
|
| |
|
|
|
|
|
/s/ Michael P. Kelly
|
|
Chairman of the Board of Directors
|
|
November 14, 2014
|
|
Michael P. Kelly
|
|
|
|
|
| |
|
|
|
|
|
/s/ Herbert J. Martin
|
|
Director
|
|
November 14, 2014
|
|
Herbert J. Martin
|
|
|
|
|
EXHIBIT INDEX
|
Exhibit Number
|
|
Description
|
| |
|
|
|
4.1
|
|
Certificate of Incorporation of Adept-Delaware (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K12G3 filed with the Securities and Exchange Commission on November 10, 2005).
|
| |
|
|
|
4.2
|
|
Certificate of Amendment of Certificate of Incorporation of Adept-Delaware (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K12G3 filed with the Securities and Exchange Commission on November 10, 2005).
|
| |
|
|
|
4.3
|
|
Certificate of Designations, Preferences and Rights of Series A Convertible Preferred Stock (incorporated by reference to Exhibit 3.3 to the Registrant’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on September 24, 2012).
|
| |
|
|
|
4.4
|
|
Amended and Restated Bylaws of Adept-Delaware, as amended (incorporated by reference to Exhibit 3.4 to the Registrant’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on September 24, 2012).
|
| |
|
|
|
4.5
|
|
Specimen of Common Stock Certificate of Adept-Delaware (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K12G3 filed with the Securities and Exchange Commission on November 10, 2005).
|
| |
|
|
|
4.6
|
|
Specimen of Preferred Stock Certificate of Adept Delaware (incorporated by reference to Exhibit 4.2 to the Registrant’s Annual Report filed with the Securities and Exchange Commission on September 24, 2012).
|
| |
|
|
|
4.7
|
|
Form of Registration Rights Agreement, dated as of November 18, 2003 by and among the Registrant and the investors party thereto (incorporated by reference to Exhibit 4.5 to the Registrant’s Registration Statement on Form S-2 (No. 333-112360) filed on January 30, 2004).
|
| |
|
|
|
4.8
|
|
Letter Agreement by and between Adept Technology, Inc. and Hale Capital Partners, LP, dated March 27, 2013 (incorporated by reference to Exhibit 4.1 to Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on March 29, 2013).
|
| |
|
|
|
4.9
|
|
Registration Rights Agreement, dated as of September 5, 2012, by and among Adept Technology, Inc. and Hale Capital Partners, LP (incorporated by reference to Exhibit 4.5 to the Registrant’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on September 24, 2012).
|
| |
|
|
|
4.1
|
|
Side Letter Agreement, dated as of September 5, 2012 by and among Adept Technology, Inc. and Hale Capital Partners, LP (incorporated by reference to Exhibit 4.6 to the Registrant’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on September 24, 2012).
|
| |
|
|
|
5.1*
|
|
Legal Opinion of Gibson, Dunn & Crutcher LLP.
|
| |
|
|
|
23.1
|
|
Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5.1).
|
| |
|
|
|
23.2*
|
|
Consent of Independent Registered Public Accounting Firm.
|
| |
|
|
|
24.1
|
|
Power of Attorney (included on the signature page to this Registration Statement on Form S-8).
|
| |
|
|
|
99.1
|
|
Registrant’s Registration Statement on Form 8-A filed with the Securities and Exchange Commission on October 31, 1995 incorporated by reference pursuant to Item 3(e). Also incorporated by reference to the Registrant’s Current Report on Form 8-K12G3 filed on November 10, 2005.
|
| |
|
|
|
99.2
|
|
2005 Equity Incentive Plan, as amended (incorporated by reference to Appendix A to the Registrant’s Schedule 14A definitive proxy statement filed with the Securities and Exchange Commission on September 26, 2014).
|
Exhibit 5.1
|
|
Gibson, Dunn & Crutcher LLP
1881 Page Mill Road
Palo Alto, CA
94304-1211
Tel 650.849.5300
www.gibsondunn.com
|
November 14, 2014
Adept Technology, Inc.
5960 Inglewood Drive
Pleasanton, CA 94588
|
|
Re:
|
Adept Technology, Inc. Registration Statement on Form S-8
|
Ladies and Gentlemen:
We have examined the registration statement on Form S-8 (the “Registration Statement”), of Adept Technology, Inc., a Delaware corporation (the “Company”), to be filed with the Securities and Exchange Commission (the “Commission”) on or about November 14, 2014 pursuant to the Securities Act of 1933, as amended (the “Securities Act”), in connection with the registration by the Company of 400,000 additional shares of the common stock of the Company, par value $0.001 per share (the “Common Stock”), issuable to eligible individuals under the Company’s 2005 Equity Incentive Plan, as amended (the “Plan”).
We have examined the originals, or photostatic or certified copies, of such records of the Company and certificates of officers of the Company and of public officials and such other documents as we have deemed relevant and necessary as the basis for the opinions set forth below. In our examination, we have assumed the genuineness of all signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as copies. We have also assumed that there are no agreements or understandings between or among the Company and any participants in the Plans that would expand, modify or otherwise affect the terms of the Plans or the respective rights or obligations of the participants thereunder. Finally, we have assumed the accuracy of all other information provided to us by the Company during the course of our investigations, on which we have relied in issuing the opinion expressed below.
Based upon the foregoing examination and in reliance thereon, and subject to the qualifications, assumptions and limitations stated herein and in reliance on the statements of fact contained in the documents that we have examined, we are of the opinion that the shares of Common Stock described above, when issued and sold in accordance with the terms set forth in the Plan and against payment therefor, and when the Registration Statement has become effective under the Securities Act, will be validly issued, fully paid and non-assessable.
We are admitted to practice in the State of California, and are not admitted to practice in the State of Delaware. However, for the limited purposes of our opinion set forth above, we are generally familiar with the Delaware General Corporation Law (the “DGCL”) as presently in effect and have made such inquiries as we consider necessary to render this opinion with respect to a Delaware corporation. This opinion letter is limited to the laws of the State of California and, to the limited extent set forth above, the DGCL, as such laws presently exist and to the facts as they presently exist. We express no opinion with respect to the effect or applicability of the laws of any other jurisdiction. We assume no obligation to revise or supplement this opinion letter should the laws of such jurisdictions be changed after the date hereof by legislative action, judicial decision or otherwise.
Beijing Ÿ Brussels Ÿ Century City Ÿ Dallas Ÿ Denver Ÿ Dubai Ÿ Hong Kong Ÿ London Ÿ Los Angeles Ÿ Munich
New York Ÿ Orange County Ÿ Palo Alto Ÿ Paris Ÿ San Francisco Ÿ Säo Paulo Ÿ Singapore Ÿ Washington, D.C.
We consent to the filing of this opinion as an exhibit to the Registration Statement, and we further consent to the use of our name under the caption “Legal Matters” in the Registration Statement and the prospectus that forms a part thereof. In giving these consents, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Securities and Exchange Commission.
| |
Very truly yours,
|
|
| |
|
|
| |
|
|
| |
/s/ Gibson, Dunn & Crutcher LLP
|
|
| |
Gibson, Dunn & Crutcher LLP
|
|
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the 2005 Equity Incentive Plan of Adept Technology, Inc. of our report dated September 6, 2014 relating to the consolidated financial statements and the effectiveness of internal control over financial reporting of Adept Technology, Inc., included in its Annual Report on Form 10-K for the year ended June 30, 2014 filed with the Securities and Exchange Commission.
ARMANINO LLP
San Jose, California
November 14, 2014