As filed with the Securities and Exchange Commission on April 26,
2023
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OWLET, INC.
(Exact name of registrant as specified in its charter)
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Delaware |
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85-1615012 |
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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3300 North Ashton Boulevard, Suite 300
Lehi, Utah 84043
(844) 334-5330
(Address, including zip code, and telephone number, including area
code, of registrant’s principal executive office)
Kurt Workman
President and Chief Executive Officer
Owlet, Inc.
3300 North Ashton Boulevard, Suite 300
Lehi, Utah 84043
(844) 334-5330
(Address, including zip code, and telephone number, including area
code, of agent for service)
Copies to:
Drew Capurro
Latham & Watkins LLP
650 Town Center Drive, 20th Floor
Costa Mesa, CA 92626
(714) 540-1235
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE
PUBLIC:
From time to time after the effective date of this registration
statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. ☐
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. ☒
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
☐
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective on filing with the Commission pursuant to Rule
462(e) under the Securities Act, check the following box.
☐
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the
following box. ☐
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer,
smaller reporting company, or an emerging growth company. See the
definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule
12b-2 of the Exchange Act.
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Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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Smaller reporting company |
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Emerging growth company |
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for comply with any new or revised financial accounting standards
provided pursuant to Section 7(a)(2)(B) of Securities Act.
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The registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933 or until the registration statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The information in this preliminary prospectus is not complete and
may be changed. These securities may not be sold until the
registration statement filed with the Securities and Exchange
Commission is effective. This preliminary prospectus is not an
offer to sell nor does it seek an offer to buy these securities in
any jurisdiction where the offer or sale is not
permitted.
Subject to Completion, dated April 26, 2023.
PROSPECTUS
OWLET, INC.
Up to 171,428,550 Shares of
Class A Common Stock
This prospectus relates to the resale of up to 171,428,550 shares
of Class A common stock, par value $0.0001 per share (the “Common
Stock”), of which 61,224,484 shares are issuable upon the
conversion of outstanding shares of Series A Preferred Stock and
110,204,066 shares are issuable upon exercise of outstanding
warrants by the securityholders named in this prospectus (the
“Registered Holders”). We will not receive any proceeds from the
sale of Common Stock by the Registered Holders.
We are registering the shares of Common Stock for resale pursuant
to registration rights granted to the Registered Holders under
certain agreements between us and the Registered Holders. Our
registration of the securities covered by this prospectus does not
mean that the Registered Holders will offer or sell any of the
shares of Common Stock covered by this prospectus. The Registered
Holders may offer and sell the securities described in this
prospectus and any related prospectus supplement to or through one
or more underwriters, dealers and agents, or directly to
purchasers, or through a combination of these methods. If any
underwriters, dealers or agents are involved in the sale of any of
the securities, their names and any applicable purchase price, fee,
commission or discount arrangement between or among them will be
set forth, or will be calculable from the information set forth, in
the applicable prospectus supplement. The Registered Holders will
pay all underwriting discounts and selling commissions, if any, in
connection with the sale of the shares of Common Stock. We have
agreed to pay certain expenses in connection with this prospectus
and to indemnify the Registered Holders against certain
liabilities. To our knowledge, as of the date of this prospectus,
no underwriter or other person has been engaged to facilitate the
sale of shares of Common Stock in this offering. See the sections
of this prospectus entitled “About this Prospectus” and “Plan of
Distribution” for more information. No securities may be sold
without delivery of this prospectus and the applicable prospectus
supplement describing the method and terms of the offering of such
securities.
INVESTING IN OUR SECURITIES INVOLVES RISKS. SEE THE
“RISK
FACTORS”
ON PAGE
6
OF THIS PROSPECTUS AND ANY SIMILAR SECTION CONTAINED IN ANY
APPLICABLE PROSPECTUS SUPPLEMENT CONCERNING FACTORS YOU SHOULD
CONSIDER BEFORE INVESTING IN OUR SECURITIES.
Our Common Stock is listed on the New York Stock Exchange, or NYSE,
under the symbol “OWLT.” On April 25, 2023, the last reported sale
price of our Common Stock on NYSE was $0.3622 per
share.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is .
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed
with the U.S. Securities and Exchange Commission, or the SEC, using
a “shelf” registration process. By using a shelf registration
statement, the Registered Holders may, from time to time, sell up
to 171,428,550 shares of Common Stock from time to time in one or
more offerings as described in this prospectus. In connection with
the offer and sale of securities by the Registered Holders, the
Registered Holders may provide a prospectus supplement to this
prospectus that contains specific information about the securities
being offered and sold and the specific terms of that offering. To
the extent permitted by law, we may also authorize one or more free
writing prospectuses to be provided to you that may contain
material information relating to these offerings. The prospectus
supplement or free writing prospectus may also add, update or
change information contained in this prospectus with respect to
that offering. If there is any inconsistency between the
information in this prospectus and the applicable prospectus
supplement or free writing prospectus, you should rely on the
prospectus supplement or free writing prospectus, as applicable.
Before purchasing any securities, you should carefully read both
this prospectus and any applicable prospectus supplement or free
writing prospectuses, together with the additional information
described under the heading “Where You Can Find More Information;
Incorporation by Reference.”
This prospectus does not contain all of the information included in
the registration statement. For a more complete understanding of
the offering of the Common Stock, you should refer to the
registration statement, including the exhibits. This prospectus
contains summaries of certain provisions contained in some of the
documents described herein, but reference is made to the actual
documents for complete information. All of the summaries are
qualified in their entirety by the actual documents. Copies of some
of the documents referred to herein have been filed, will be filed
or will be incorporated by reference as exhibits to the
registration statement of which this prospectus is a part, and you
may obtain copies of those documents as described below under the
heading “Where You Can Find More Information.” We further note that
the representations, warranties and covenants made by us in any
agreement that is filed as an exhibit to any document that is
incorporated by reference in this prospectus were made solely for
the benefit of the parties to such agreement, including, in some
cases, for the purpose of allocating risk among the parties to such
agreements, and should not be deemed to be a representation,
warranty or covenant to you. Moreover, such representations,
warranties or covenants were accurate only as of the date when
made. Accordingly, such representations, warranties and covenants
should not be relied on as accurately representing the current
state of our affairs.
Neither we, nor the Registered Holders, have authorized anyone to
provide you with any information or to make any representations
other than those contained in this prospectus, any applicable
prospectus supplement or any free writing prospectuses prepared by
or on behalf of us or to which we have referred you. We and the
Registered Holders take no responsibility for, and can provide no
assurance as to the reliability of, any other information that
others may give you. The Registered Holders will not make an offer
to sell these securities in any jurisdiction where the offer or
sale is not permitted. You should assume that the information
appearing in this prospectus and any applicable prospectus
supplement to this prospectus is accurate only as of the date of
such prospectus or applicable prospectus supplement, that the
information appearing in any applicable free writing prospectus is
accurate only as of the date of that free writing prospectus, and
that any information incorporated by reference is accurate only as
of the date of the document incorporated by reference, unless we
indicate otherwise. Our business, financial condition, results of
operations and prospects may have changed since those dates. This
prospectus incorporates by reference, and any prospectus supplement
or free writing prospectus may contain and incorporate by
reference, market data and industry statistics and forecasts that
are based on independent industry publications and other publicly
available information. Although we believe these sources are
reliable, we do not guarantee the accuracy or completeness of this
information and we have not independently verified this
information. In addition, the market and industry data and
forecasts that may be included or incorporated by reference in this
prospectus, any prospectus supplement or any applicable free
writing prospectus may involve estimates, assumptions and other
risks and uncertainties and are subject to change based on various
factors, including those discussed under the heading “Risk Factors”
contained in this prospectus, the applicable prospectus supplement
and any applicable free writing prospectus, and under similar
headings in other documents that are incorporated by reference into
this prospectus. Accordingly, investors should not place undue
reliance on this information.
When we refer to “Owlet,” “we,” “our,” “us” and the “Company” in
this prospectus, we mean Owlet, Inc. and its subsidiaries, unless
otherwise specified. When we refer to “you,” we mean the potential
holders of the applicable series of securities.
We use our trademarks and our logo, in this prospectus and the
documents incorporated by reference. This prospectus and the
documents incorporated by reference also include trademarks,
tradenames and service marks that are the property of other
organizations. Solely for convenience, trademarks and tradenames
referred to in this prospectus appear without the ® and ™ symbols,
but those references are not intended to indicate, in any way, that
we will not assert, to the fullest extent under applicable law, our
rights or that the applicable owner will not assert its rights, to
these trademarks and tradenames.
WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION BY
REFERENCE
Available Information
We file reports, proxy statements and other information with the
SEC. The SEC maintains a web site that contains reports, proxy and
information statements and other information about issuers, such as
us, who file electronically with the SEC. The address of that
website is
http://www.sec.gov.
Our web site address is
https://www.owletcare.com.
The information on our web site, however, is not, and should not be
deemed to be, a part of this prospectus.
This prospectus and any prospectus supplement are part of a
registration statement that we filed with the SEC and do not
contain all of the information in the registration statement. The
full registration statement may be obtained from the SEC or us, as
provided below. Documents establishing the terms of the offered
securities are or may be filed as exhibits to the registration
statement or documents incorporated by reference in the
registration statement. Statements in this prospectus or any
prospectus supplement about these documents are summaries and each
statement is qualified in all respects by reference to the document
to which it refers. You should refer to the actual documents for a
more complete description of the relevant matters. You may inspect
a copy of the registration statement through the SEC’s website, as
provided above.
Incorporation by Reference
The SEC’s rules allow us to “incorporate by reference” information
into this prospectus, which means that we can disclose important
information to you by referring you to another document filed
separately with the SEC. The information incorporated by reference
is deemed to be part of this prospectus, and subsequent information
that we file with the SEC will automatically update and supersede
that information. Any statement contained in this prospectus or a
previously filed document incorporated by reference will be deemed
to be modified or superseded for purposes of this prospectus to the
extent that a statement contained in this prospectus or a
subsequently filed document incorporated by reference modifies or
replaces that statement.
This prospectus and any accompanying prospectus supplement
incorporate by reference the documents set forth below that have
previously been filed with the SEC:
•Our
Annual Report on
Form 10-K
for the year ended December 31, 2022, filed with the SEC on April
6, 2023.
•The
description of our Common Stock contained in the registration
statement on
Form 8-A,
filed with the SEC on September 14, 2020, as updated by
Exhibit
4.4
to our Annual Report on
Form 10-K
for the year ended December 31, 2022 and any amendment or report
filed with the SEC for the purpose of updating such
description.
All reports and other documents we subsequently file pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended, which we refer to as the “Exchange Act” in this
prospectus, prior to the termination of this offering, including
all such documents we may file with the SEC after the initial
filing date of the registration statement and prior to the
effectiveness of the registration statement, but excluding any
information furnished to, rather than filed with, the SEC, will
also be incorporated by reference into this prospectus and deemed
to be part of this prospectus from the date of the filing of such
reports and documents.
You may request a free copy of any of the documents incorporated by
reference in this prospectus by writing or telephoning us at the
following address:
Owlet, Inc.
3300 North Ashton Boulevard, Suite 300
Lehi, Utah 84043
(844) 334-5330
Exhibits to the filings will not be sent, however, unless those
exhibits have specifically been incorporated by reference in this
prospectus or any accompanying prospectus supplement.
THE COMPANY
Our Company's mission is to empower parents with the right
information at the right time, to give the best care possible to
their baby at home. Our digital parenting platform aims to give
parents real-time data and insights to help parents feel calmer and
more confident. We believe that every parent deserves peace of mind
and the opportunity to feel well-rested. We also believe that every
child deserves to live a long, happy, and healthy life, and are
working to develop products to help further those beliefs. Our
ecosystem of digital parenting solutions is helping to transform
modern parenting by providing parents data-driven insights into
their children’s well-being in the comfort of their own home. We
are also developing in-home pediatric monitoring and analytics
technologies, which we believe have the potential to provide
parents with additional information about their children and are
also designed to notify parents and caregivers of certain biometric
findings with the goal of improving the safety and health of
children at home. Long-term we believe that in-home data collection
and monitoring can help us unlock solutions to reducing risk of
infant death due to Sudden Unexplained Infant Death (SUID) and
Sudden Infant Death Syndrome (SIDS) and opportunistically detecting
infant ailments such as respiratory syncytial virus (RSV) and
supraventricular tachycardia (SVT).
We filed our certificate of incorporation with the Secretary of
State of Delaware on June 23, 2020 under the name Sandbridge
Acquisition Corporation. Upon the closing of the business
combination pursuant to that Business Combination Agreement dated
February 15, 2021, by and among the Company (f/k/a Sandbridge
Acquisition Corporation), Project Olympus Merger Sub, Inc., and
Owlet Baby Care Inc., we changed our name to Owlet,
Inc.
Our principal executive offices are located at 3300 North Ashton
Boulevard, Suite 300, Lehi, Utah 84043 and our telephone number is
(844) 334-5330.
RISK FACTORS
Investment in any securities offered pursuant to this prospectus
and any applicable prospectus supplement involves risks. You should
carefully consider the risk factors incorporated by reference to
our most recent Annual Report on Form 10-K and any subsequent
Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, and
all other information contained or incorporated by reference into
this prospectus, as updated by our subsequent filings under the
Exchange Act, and the risk factors and other information contained
in any applicable prospectus supplement and any applicable free
writing prospectus before acquiring any of such securities. The
occurrence of any of these risks might cause you to lose all or
part of your investment in the offered securities. This prospectus
and the documents incorporated herein by reference also contain
forward-looking statements that involve risks and uncertainties.
Actual results could differ materially from those anticipated in
these forward-looking statements as a result of certain factors,
including the risks described in the documents incorporated herein
by reference.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of Common
Stock being offered by any of the Registered Holders. To the extent
warrants are exercised for cash, we will receive the exercise price
thereof.
The Registered Holders will pay any underwriting discounts and
commissions and any similar expenses they incur in disposing of the
Common Stock, if any, and any related legal expenses incurred by
them, except with respect to reimbursement of fees and expenses of
legal counsel of certain Registered Holders in connection with
certain registered offerings as provided by the Amended and
Restated Registration Rights Agreement, dated July 15, 2021, by and
among the Company and certain stockholders of the Company. We will
bear all other costs, fees and expenses incurred in effecting the
registration of the Common Stock covered by this prospectus,
including all registration and filing fees, fees and expenses of
compliance with securities or “blue sky” laws, listing application
fees, printing expenses, transfer agent’s and registrar’s fees,
costs of distributing prospectuses in preliminary and final form as
well as any supplements thereto, and fees and disbursements of our
counsel and all independent certified public accountants and other
persons retained by us.
DESCRIPTION OF CAPITAL STOCK
General
The following description summarizes some of the terms of our
second amended and restated certificate of incorporation (the
“certificate of incorporation”) and our amended and restated bylaws
(“bylaws”) and the General Corporation Law of the State of Delaware
(“DGCL”). This description is summarized from, and qualified in its
entirety by reference to, our certificate of incorporation and
bylaws, each of which has been publicly filed with the SEC, as well
as the relevant provisions of the DGCL.
Our purpose is to engage in any lawful act or activity for which
corporations may be organized under the DGCL. Our authorized
capital stock consists of 1,000,000,000 shares of Class A common
stock, par value $0.0001 per share (“Common Stock”), and
100,000,000 shares of preferred stock, par value $0.0001 per share.
As of the date of this prospectus, we have two classes of
securities registered under Section 12 of the Exchange Act: Common
Stock, and redeemable warrants, each whole warrant exercisable for
one share of Common Stock at an exercise price of $11.50, initially
issued in the initial public offering of Sandbridge Acquisition
Corporation or in a concurrent private placement. We have
30,000 shares of preferred stock issued and outstanding, all of
which are designated as Series A Convertible Preferred Stock.
Unless our board of directors (the “Board”) determines otherwise,
we will issue all shares of our capital stock in uncertificated
form.
Common Stock
Voting Rights
Holders of shares of our Common Stock are entitled to one vote for
each share held of record on all matters submitted to a vote of
stockholders. The holders of Common Stock do not have cumulative
voting rights in the election of directors. The holders of a
majority of the voting power of the capital stock issued and
outstanding and entitled to vote thereat, present in person or
represented by proxy, will constitute a quorum at all meetings of
the stockholders for the transaction of business except as
otherwise required by law or provided by our certificate of
incorporation. If, however, such quorum will not be present or
represented at any meeting of the stockholders, the holders of a
majority of the voting power present in person or represented by
proxy, will have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a
quorum will be present or represented.
Dividend Rights
Declaration and payment of any dividend is subject to the
discretion of our Board. The time and amount of dividends will be
dependent upon, among other things, our business prospects, results
of operations, financial condition, cash requirements and
availability, debt repayment obligations, capital expenditure
needs, contractual restrictions, covenants in the agreements
governing current and future indebtedness, industry trends, the
provisions of Delaware law affecting the payment of dividends and
distributions to stockholders and any other factors or
considerations our Board may regard as relevant.
Liquidation, Dissolution and Winding Up
Upon our liquidation, dissolution or winding up of our affairs,
whether voluntary or involuntary, after payment or provision for
payment of our debts and any other payments required by law and
amounts payable upon shares of preferred stock ranking senior to
the shares of Common Stock upon such dissolution, liquidation or
winding up, if any, our remaining net assets will be distributed to
the holders of shares of Common Stock upon such dissolution,
liquidation or winding up, pro rata on a per share
basis.
Other Matters
Holders of our Common Stock do not have preemptive, subscription,
redemption or conversion rights. There are no redemption provisions
or sinking fund provisions applicable to the Common Stock. The
rights, powers, preferences and privileges of holders of the Common
Stock are subject to those of the holders of any shares of our
preferred stock that the Board of the Company may authorize
and issue in the future.
Preferred Stock
Under the terms of our certificate of incorporation, the Board has
the authority to issue shares of preferred stock from time to time
on terms it may determine, to divide shares of preferred stock into
one or more series and to fix the designations, preferences,
privileges, and restrictions of preferred stock, including dividend
rights, conversion rights, voting rights, terms of redemption,
liquidation preference and the number of shares constituting any
series or the designation of any series to the fullest extent
permitted by the DGCL.
The purpose of authorizing the Board to issue preferred stock and
determine its rights and preferences is to eliminate delays
associated with a stockholder vote on specific issuances. The
issuance of preferred stock, while providing flexibility in
connection with possible acquisitions, future financings and other
corporate purposes, could have the effect of making it more
difficult for a third party to acquire, or could discourage a third
party from seeking to acquire, a majority of the outstanding voting
stock. Additionally, the issuance of preferred stock may adversely
affect the holders of Common Stock by restricting dividends on the
Common Stock, diluting the voting power of the Common Stock or
subordinating the liquidation rights of the Common Stock. As a
result of these or other factors, the issuance of preferred stock
could have an adverse impact on the market price of the Common
Stock.
Authorized but Unissued Capital Stock
Delaware law does not require stockholder approval for any issuance
of authorized shares. However, the listing requirements of the
NYSE, which would apply if and so long as our Common Stock remains
listed on the NYSE, require stockholder approval of certain
issuances equal to or exceeding 20% of the then outstanding voting
power or then outstanding number of shares of Common Stock and
certain other issuances specified in the rules of the NYSE.
Additional shares that may be issued in the future may be used for
a variety of corporate purposes, including future public offerings,
to raise additional capital, or to facilitate
acquisitions.
One of the effects of the existence of unissued and unreserved
Common Stock may be to enable the Board to issue shares to persons
friendly to current management, which issuance could render more
difficult or discourage an attempt to obtain control of us by means
of a merger, tender offer, proxy contest or otherwise and thereby
protect the continuity of management and possibly deprive
stockholders of opportunities to sell their shares of Common Stock
at prices higher than prevailing market prices.
The existence of authorized but unissued and unreserved Common
Stock and preferred stock could make more difficult or discourage
an attempt to obtain control of us.
Anti-takeover Effects of Our Certificate of Incorporation and
Bylaws
Our certificate of incorporation and bylaws contain provisions that
may delay, defer or discourage another party from acquiring control
of us. We expect that these provisions, which are summarized below,
will discourage coercive takeover practices or inadequate takeover
bids. These provisions are also designed to encourage persons
seeking to acquire control of us to first negotiate with the Board,
which we believe may result in an improvement of the terms of any
such acquisition in favor of our stockholders. However, they also
give the Board the power to discourage acquisitions that some
stockholders may favor.
Classified Board of Directors
As indicated below, our certificate of incorporation provides that
the Board is divided into three classes of directors, with each
class of directors being elected by our stockholders every three
years. The classification of directors will have the effect of
making it more difficult for stockholders to change the composition
of the Board.
Special Meeting, Action by Written Consent and Advance Notice
Requirements for Stockholder Proposals
Unless otherwise required by law, and subject to the rights, if
any, of the holders of any series of preferred stock, special
meetings of our stockholders, for any purpose or purposes, may be
called only by or at the direction of (i) a majority of the Board,
(ii) the chairperson of the Board, (iii) the Chief Executive
Officer or (iv) the President. Unless otherwise required by law,
written notice of a special meeting of stockholders, stating the
time, place and purpose or purposes thereof, shall be given to each
stockholder entitled to vote at such meeting, not less than 10
or
more than 60 days before the date fixed for the meeting. Business
transacted at any special meeting of stockholders will be limited
to the purposes stated in the notice.
In addition, our bylaws require advance notice procedures for
stockholder proposals to be brought before an annual meeting of the
stockholders, including the nomination of directors. Stockholders
at an annual meeting may only consider the proposals specified in
the notice of meeting or brought before the meeting by or at the
direction of the Board, or by a stockholder of record on the record
date for the meeting, who is entitled to vote at the meeting and
who has delivered a timely written notice in proper form to our
secretary, of the stockholder’s intention to bring such business
before the meeting.
These provisions could have the effect of delaying until the next
stockholder meeting any stockholder actions, even if such actions
are favored by the holders of a majority of our outstanding voting
securities.
Amendment to Certificate of Incorporation and Bylaws
The DGCL provides generally that the affirmative vote of a majority
of the outstanding stock entitled to vote on amendments to a
corporation’s certificate of incorporation or bylaws is required to
approve such amendment, unless a corporation’s certificate of
incorporation or bylaws, as the case may be, requires a greater
percentage.
Our certificate of incorporation provides that the following
provisions therein may be amended, altered, repealed or rescinded
only by the affirmative vote of the holders of at least 66 and 2/3%
in voting power of all the then outstanding shares of Common Stock
entitled to vote thereon as a class:
•the
provisions regarding Owlet’s preferred stock;
•the
provisions regarding the size, classification, appointment, removal
and authority of the Board;
•the
provisions prohibiting stockholder actions without a
meeting;
•the
provisions regarding calling special meetings of
stockholders;
•the
provisions regarding the selection of certain forums for certain
specified legal proceedings between Owlet and its stockholders;
and
•the
provisions regarding the limited liability of directors of
Owlet.
Our bylaws may be amended or repealed (A) by the affirmative vote
of a majority of the entire Board then in office (subject to any
bylaw requiring the affirmative vote of a larger percentage of the
members of the Board) or (B) without the approval of the Board, by
the affirmative vote of the holders of 66 and 2/3% of the
outstanding voting stock of Owlet entitled to vote generally in an
election of directors, voting together as a single
class.
Business Combinations
Section 203 of the DGCL provides that if a person acquires 15% or
more of the voting stock of a Delaware corporation, such person
becomes an “interested stockholder” and may not engage in certain
“business combinations” with the corporation for a period of three
years from the time such person acquired 15% or more of the
corporation’s voting stock, unless:
1.the
board of directors approves the acquisition of stock or the merger
transaction before the time that the person becomes an interested
stockholder;
2.the
interested stockholder owns at least 85% of the outstanding voting
stock of the corporation at the time the merger transaction
commences (excluding voting stock owned by directors who are also
officers and certain employee stock plans); or
3.the
merger transaction is approved by the board of directors and at a
meeting of stockholders, not by written consent, by the affirmative
vote of 2/3 of the outstanding voting stock which is not owned by
the interested stockholder.
A Delaware corporation may elect in its certificate of
incorporation or bylaws not to be governed by this particular
Delaware law.
Generally, a “business combination” includes a merger, asset or
stock sale or other transaction resulting in a financial benefit to
the interested stockholder. Subject to certain exceptions, an
“interested stockholder” is a person who, together with that
person’s affiliates and associates, owns, or within the previous
three years owned, 15% or more of our voting stock.
Since we have not opted out of Section 203 of the DGCL, it applies
to Owlet. As a result, this provision will make it more difficult
for a person who would be an “interested stockholder” to effect
various business combinations with Owlet for a three-year period.
This provision may encourage companies interested in acquiring
Owlet to negotiate in advance with the Board because the
stockholder approval requirement would be avoided if the Board
approves either the business combination or the transaction which
results in the stockholder becoming an interested stockholder.
These provisions also may have the effect of preventing changes in
the Board and may make it more difficult to accomplish transactions
which stockholders may otherwise deem to be in their best
interests.
Election of Directors and Vacancies
The number of directors of the Board shall be fixed solely and
exclusively by resolution duly adopted from time to time by the
Board. The Board is divided into three classes, designated Class I,
II and III, each class of directors will be elected by our
stockholders every three years. The Amended and Restated
Stockholders Agreement, dated as of February 17, 2023 (the
“Stockholders Agreement”), by and among the Company, Eclipse
Ventures Fund I, L.P., Eclipse Continuity Fund I, L.P. and Eclipse
Early Growth Fund I (together, “Eclipse”) also provides that, (a)
until such time as Eclipse beneficially owns less than 20.0% of the
total voting power entitled to elect directors, Eclipse shall be
entitled to nominate two individuals (the “Eclipse Directors” and
each, an “Eclipse Director”) and (b) from such time that Eclipse
beneficially owns less than 20.0% of the total voting power
entitled to elect directors and until Eclipse beneficially owns
less than 10.0% of the total voting power entitled to elect
directors, Eclipse will be entitled to nominate one Eclipse
Director and, we will include the nominee selected by Eclipse as a
director nominee in our proxy statement for our annual meeting each
time directors from the class to which such nominee is assigned are
up for election.
Under the bylaws, at all meetings of stockholders that call for the
election of directors, a plurality of the votes properly cast will
be sufficient to elect such directors to the Board.
Except as the DGCL or the Stockholders Agreement may otherwise
require and subject to the rights, if any, of the holders of any
series of preferred stock, in the interim between annual meetings
of stockholders or special meetings of stockholders called for the
election of directors and/or the removal of one or more directors
and the filling of any vacancy in that connection, newly created
directorships and any vacancies on the Board, including unfilled
vacancies resulting from the removal of directors, may be filled
only by the affirmative vote of a majority of the remaining
directors then in office, even though less than a quorum, or by a
sole remaining director. All directors will hold office until the
expiration of their respective terms of office and until their
successors will have been elected and qualified. A director elected
or appointed to fill a vacancy resulting from the death,
resignation or removal of a director or a newly created
directorship will serve for the remainder of the full term of the
class of directors in which the new directorship was created or the
vacancy occurred and until his or her successor will have been
elected and qualified.
Subject to the Stockholders Agreement and the rights, if any, of
any series of preferred stock, any director may be removed from
office only with cause and only by the affirmative vote of the
holders of at least two-thirds of our outstanding voting stock then
entitled to vote at an election of directors. Subject to the terms
and conditions of the Stockholders Agreement, in case the Board or
any one or more directors should be so removed, new directors may
be elected at the same time for the unexpired portion of the full
term of the director or directors so removed.
In addition to the powers and authorities hereinbefore or by
statute expressly conferred upon them, the directors are hereby
empowered to exercise all such powers and do all such acts and
things as may be exercised or done by us, subject, nevertheless, to
the provisions of the DGCL, our certificate of incorporation and to
any bylaws adopted and
in effect from time to time; provided, however, that no bylaws so
adopted will invalidate any prior act of the directors which would
have been valid if such bylaws had not been adopted.
Notwithstanding the foregoing provisions, any director elected
pursuant to the right, if any, of the holders of preferred stock to
elect additional directors under specified circumstances will serve
for such term or terms and pursuant to such other provisions as
specified in the relevant certificate of designations related to
the preferred stock.
Exclusive Jurisdiction of Certain Actions
Our bylaws require, to the fullest extent permitted by law, unless
we consent in writing to the selection of an alternative forum,
that derivative actions brought on our behalf, actions against any
director, officer or stockholder of Owlet for breach of fiduciary
duty, actions asserting a claim arising pursuant to any provision
of the DGCL or our certificate of incorporation or bylaws, and
actions asserting a claim against us governed by the internal
affairs doctrine may be brought only in the Court of Chancery of
the State of Delaware and, if brought outside of Delaware, the
stockholder bringing the suit will be deemed to have consented to
the personal jurisdiction of the state and federal courts in the
State of Delaware and service of process on such stockholder’s
counsel. Although we believe this provision benefits Owlet by
providing increased consistency in the application of Delaware law
in the types of lawsuits to which it applies, the provision may
have the effect of discouraging lawsuits against our directors and
officers.
Section 22 of the Securities Act of 1933, as amended (the
“Securities Act”), creates concurrent jurisdiction for federal and
state courts over all suits brought to enforce any duty or
liability created by the Securities Act or the rules and
regulations thereunder. Accordingly, both state and federal courts
have jurisdiction to entertain such Securities Act claims. To
prevent having to litigate claims in multiple jurisdictions and the
threat of inconsistent or contrary rulings by different courts,
among other considerations, our bylaws require that, unless we
consent in writing to the selection of an alternative forum, the
federal district courts of the United States of America shall be
the sole and exclusive forum for resolving any action asserting a
claim arising under the Securities Act and, if brought in a court
other than the federal district courts of the United States of
America, the stockholder bringing the suit will be deemed to have
consented to the personal jurisdiction of the federal district
courts of the United States of America and service of process on
such stockholder’s counsel. However, there is uncertainty as to
whether a court would enforce such provision, and investors cannot
waive compliance with federal securities laws and the rules and
regulations thereunder.
The foregoing provisions will not apply to suits brought to enforce
any liability or duty created by the Exchange Act or any other
claim for which the federal courts of the United States have
exclusive jurisdiction. Section 27 of the Exchange Act creates
exclusive federal jurisdiction over all suits brought to enforce
any duty or liability created by the Exchange Act or the rules and
regulations thereunder.
Limitations on Liability and Indemnification of Officers and
Directors
Our certificate of incorporation limits the liability of our
directors to the fullest extent permitted by the DGCL, and our
bylaws provide that we will indemnify them to the fullest extent
permitted by such law. We have entered into agreements to indemnify
our directors, executive officers and other employees as determined
by our Board. Under the terms of such indemnification agreements,
we are required to indemnify each of our directors and officers, to
the fullest extent permitted by the laws of the State of Delaware,
if the indemnitee acted in good faith and in a manner the
indemnitee reasonably believed to be in or not opposed to the best
interests of Owlet. We must indemnify our officers and directors
against all reasonable fees, expenses, charges and other costs of
any type or nature whatsoever, including any and all expenses and
obligations paid or incurred in connection with investigating,
defending, being a witness in, participating in (including on
appeal), or preparing to defend, be a witness or participate in any
completed, actual, pending or threatened action, suit, claim or
proceeding, whether civil, criminal, administrative or
investigative, or establishing or enforcing a right to
indemnification under the indemnification agreement. The
indemnification agreements also require us, if so requested, to
advance within 30 days of such request all reasonable fees,
expenses, charges and other costs that such director or officer
incurred, provided that such person will return any such advance if
it is ultimately determined that such person is not entitled
to
indemnification by us. Any claims for indemnification by our
directors and officers may reduce our available funds to satisfy
successful third-party claims against us and may reduce the amount
of money available to us.
Trading Symbol and Market
Our Common Stock is listed on NYSE under the symbol
“OWLT.”
REGISTERED HOLDERS
This prospectus relates to the possible resale by certain of the
Registered Holders from time to time of up to an aggregate of
171,428,550 shares of Common Stock, which consists of 61,224,484
shares are issuable upon the conversion of shares of Series A
Preferred Stock to Common Stock and 110,204,066 shares of Common
Stock issuable upon the exercise of warrants sold in the private
placement described below. The term “Registered Holders” includes
donees, pledgees, transferees or other successors in interest
selling shares of Common Stock received after the date of this
prospectus from a Registered Holder as a gift, pledge, partnership
distribution or other transfer.
On February 17, 2023, we entered into Investment Agreements (the
“Investment Agreement”) with the Registered Holders, pursuant to
which we issued and sold to the Registered Holders (i) an aggregate
of 30,000 shares of our Series A Convertible Preferred Stock, par
value $0.0001 per share, and (ii) warrants to purchase an aggregate
of 110,204,066 shares of Common Stock, par value $0.0001 per share,
for an aggregate purchase price of $30.0 million. On July 15,
2021, we entered into the Amended and Restated Registration Rights
Agreement with certain of the Registered Holders, which governs
certain registration rights of certain Registered
Holders.
The following table and footnote disclosure following the table
sets forth information concerning the shares of Common Stock that
may be offered from time to time by each Registered Holder, the
nature of any position, office or other material relationship, if
any, that each Registered Holder has had within the past three
years with us or with any of our predecessors or affiliates and the
number of shares of our Common Stock beneficially owned by each
Registered Holder before this offering. The number of shares
beneficially owned by each Registered Holder is determined under
rules issued by the SEC. Under these rules, beneficial ownership
includes any shares as to which the Registered Holder has sole or
shared voting power or investment power. Percentage ownership is
based on 117,465,938 shares of Common Stock outstanding as of April
3, 2023. In computing the number of shares beneficially owned by a
Registered Holder and their percentage ownership, shares of Common
Stock subject to options, warrants or other rights held by such
Registered Holder that are currently exercisable or will become
exercisable within 60 days of April 3, 2023 are considered
outstanding, although these shares are not considered outstanding
for purposes of computing the percentage ownership of any other
Registered Holder. For purposes of this table, we have assumed that
the Registered Holders will have sold all of the securities covered
by this prospectus upon the completion of the offering (including
all shares of Common Stock issuable upon exercise of the warrants).
Each of the Registered Holders listed has sole voting and
investment power with respect to the shares beneficially owned by
the Registered Holder unless noted otherwise.
The information in the following table has been provided to us by
or on behalf of the Registered Holders and the Registered Holders
may have sold, transferred or otherwise disposed of all or a
portion of their securities after the date on which they provided
us with information regarding their securities. A Registered Holder
may sell all, some or none of its securities in this offering. See
“Plan of Distribution.”
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Common Stock
Beneficially Owned
Before this Offering |
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Maximum Number of
Shares of Common
Stock to be Sold Pursuant
to this Prospectus |
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Common Stock Beneficially Owned Upon Completion of this
Offering |
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Registered Holder |
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Number |
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Percentage |
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Number |
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Number |
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Percentage |
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Eclipse Early Growth Fund I, L.P.
(1)
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143,920,901 |
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49.8 |
% |
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115,428,569 |
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28,492,332 |
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24.3 |
% |
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Trilogy Equity Partners, LLC
(2)
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24,531,139 |
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8.5 |
% |
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15,525,711 |
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9,005,428 |
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7.7 |
% |
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Kurt Workman
(3)
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7,495,427 |
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2.6 |
% |
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2,857,142 |
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4,638,285 |
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4.0 |
% |
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John Frankel
(4)
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5,018,129 |
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1.7 |
% |
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1,142,856 |
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3,875,273 |
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3.3 |
% |
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John Stanton and Theresa Gillespie, TIC
(5)
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7,102,326 |
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2.5 |
% |
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4,188,570 |
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2,913,756 |
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2.5 |
% |
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Litespeed Master Fund, LTD.
(6)
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7,332,859 |
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2.5 |
% |
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5,714,284 |
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1,618,575 |
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1.4 |
% |
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Walleye Opportunities Master Fund Ltd
(7)
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12,899,794 |
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4.5 |
% |
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12,857,140 |
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42,654 |
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*
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The Melton 2020 Irrevocable Trust
(8)
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8,571,427 |
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3.0 |
% |
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8,571,427 |
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— |
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— |
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John Kim
(9)
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2,889,262 |
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1.0 |
% |
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2,857,142 |
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32,120 |
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*
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Cedar Holdings MGMT LLC
(10)
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1,828,571 |
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*
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1,428,571 |
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400,000 |
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*
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Peter Thomsen Trust #2
(11)
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328,762 |
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*
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142,856 |
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185,906 |
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*
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Samuel Thomsen Trust #2
(12)
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328,762 |
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*
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142,856 |
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185,906 |
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*
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Oliver Frankel
(13)
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571,426 |
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*
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571,426 |
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— |
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— |
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__________________
*Less
than one percent.
(1)Based
on information included in the Schedule 13D/A filed with the SEC on
February 27, 2023 by Eclipse Continuity GP I, LLC, Eclipse
Continuity Fund I, L.P., Eclipse Ventures GP I, LLC, Eclipse
Ventures Fund I, L.P., Eclipse Early Growth GP I, LLC, Eclipse
Early Growth Fund I, L.P., (together, the “Eclipse Entities”) and
Lior Susan, our Chairman of the Board. Includes (i) 41,224,489
shares of Common Stock that would be issued upon the
conversion of Series A Convertible Preferred Stock and (ii)
74,204,080 shares of Common Stock that would be issued
upon the exercise of the warrant purchased by Eclipse Early Growth
Fund I, L.P. pursuant to the Investment Agreement. Pursuant to the
transaction documents executed in connection with the Investment
Agreement, the Eclipse entities may not convert its Series A
Convertible Preferred stock or exercise its warrant, as
applicable, to the extent such action would result in beneficial
ownership in excess of 29.99% of our outstanding Common Stock,
until our stockholders approve such ownership in excess of 29.99%
at a stockholder meeting. The principal place of business for the
foregoing entities is 514 High Street, Suite 4, Palo Alto,
California 94301.
(2)Based
on information included in the Schedule 13D/A filed with the SEC on
February 23, 2023 by Trilogy Equity Partners, LLC. The principal
business address for the foregoing entity is 155 108th Avenue N.E.,
Suite 400, Bellevue, Washington 98004. Amy McCullough, a member of
our Board, is the President and a Manager of Trilogy Equity
Partners, LLC. Ms. McCullough disclaims beneficial ownership of the
shares held by Trilogy Equity Partners, LLC, except to the extent
of her pecuniary interest therein, if any.
(3)Based
on information included in the Schedule 13D filed with the SEC on
February 27, 2023 by Kurt Workman, our President and Chief
Executive Officer and a member of our Board. Includes 22,012 shares
of Common Stock issuable upon exercise of options outstanding as of
or within 60 days of April 3, 2023. The business address for Kurt
Workman is 3300 North Ashton Boulevard, Suite 300, Lehi, Utah
84043.
(4)Includes
(i) 408,163 shares of Common Stock that would be issued upon the
conversion of Series A Convertible Preferred Stock, (ii) 734,693
shares of Common Stock that would be issued upon the exercise of
the warrant purchased by Mr. Frankel pursuant to the Investment
Agreement, (iii) 204,172 shares of Common Stock held by Mr. Frankel
through his Pension account, (iv) 100,000 shares of Common Stock
that would be issued upon the exercise of the warrant purchased by
Mr. Frankel through his Pension account, (v) 2,935,481 shares of
Common Stock held by ff Rose Venture Capital Fund, L.P., whose
general partner Mr. Frankel is the sole Manager (vi) 485,620 shares
of Common Stock held by ff Burgundy Venture Capital Fund, L.P.,
whose general partner Mr. Frankel is the sole Manager (vii) 85,000
shares of Common Stock held by Julia Frankel, Mr. Frankel’s spouse,
in a Roth IRA, and (viii) 65,000 shares of Common Stock that would
be issued upon the exercise of a warrant previously purchased by
Julia Frankel in a Roth IRA.
(5)Based
on information included in the Schedule 13G filed with the SEC on
February 27, 2023 by John Stanton and Theresa Gillespie. The
principal business address for John Stanton and Theresa Gillespie
is P.O. Box 465, Medina, Washington 98039.
(6)Includes
(i) 2,040,816 shares of Common Stock that would be issued upon the
conversion of Series A Convertible Preferred Stock,(ii) 3,673,468
shares of Common Stock that would be issued upon the exercise of
the warrant purchased by Litespeed Master Fund, LTD. pursuant to
the Investment Agreement, (iii) 1,618,496 shares of Common Stock
held by Litespeed Master Fund, LTD., and (iv) 79 shares of Common
Stock that would be issued upon the exercise of a warrant
previously purchased by Litespeed Master Fund, LTD.
(7)Includes
(i) 4,591,836 shares of Common Stock that would be issued upon the
conversion of Series A Convertible Preferred Stock, (ii) 8,265,304
shares of Common Stock that would be issued upon the exercise of
the warrant purchased by Walleye Opportunities Master Fund Ltd
pursuant to the Investment Agreement, and (iii) 42,654 shares of
Common Stock that would be issued upon the exercise of the warrant
previously purchased by Walleye Opportunities Master Fund Ltd.
Pursuant to the transaction documents executed in connection with
the Investment Agreement, Walleye Opportunities Master Fund Ltd.
may not convert its Series A Convertible Preferred Stock or
exercise its
warrant, as applicable, to the extent such action would result in
beneficial ownership in excess of 4.99% of the Company’s
outstanding Common Stock at any time.
(8)Includes
(i) 3,061,224 shares of Common Stock that would be issued upon the
conversion of Series A Convertible Preferred Stock and (ii)
5,510,203 shares of Common Stock that would be issued upon the
exercise of the warrant purchased by The Melton 2020 Irrevocable
Trust pursuant to the Investment Agreement.
(9)Includes
(i) 1,020,408 shares of Common Stock that would be issued upon the
conversion of Series A Convertible Preferred Stock and (ii)
1,836,734 shares of Common Stock that would be issued upon the
exercise of the warrant purchased by John Kim, a member of our
Board, pursuant to the Investment Agreement.
(10)Includes
(i) 510,204 shares of Common Stock that would be issued upon the
conversion of Series A Convertible Preferred Stock, (ii) 918,367
shares of Common Stock that would be issued upon the exercise of
the warrant purchased by Cedar Holdings MGMT LLC pursuant to the
Investment Agreement, and (iii) 400,000 shares of Common Stock held
by Cedar Holdings MGMT LLC.
(11)Based
on information included in the Schedule 13G filed with the SEC on
February 27, 2023 by John Stanton, the sole trustee. The principal
business address for John Stanton is P.O. Box 465, Medina,
Washington 98039.
(12)Based
on information included in the Schedule 13G filed with the SEC on
February 27, 2023 by John Stanton, the sole trustee. The principal
business address for John Stanton is P.O. Box 465, Medina,
Washington 98039.
(13)Includes
(i) 204,081 shares of Common Stock that would be issued upon the
conversion of Series A Convertible Preferred Stock and (ii) 367,345
shares of Common Stock that would be issued upon the exercise of
the warrant purchased by Mr. Frankel pursuant to the Investment
Agreement.
PLAN OF DISTRIBUTION
The Registered Holders may from time to time offer some or all of
the shares of Common Stock covered by this prospectus. To the
extent required, this prospectus may be amended and supplemented
from time to time to describe a specific plan of distribution. The
Registered Holders will not pay any of the costs, expenses and fees
in connection with the registration of the shares covered by this
prospectus, but they will pay any and all underwriting discounts,
selling commissions and similar charges attributable to sales of
the shares. We will not receive any proceeds from the sale of the
shares of Common Stock covered hereby. To the extent warrants are
exercised for cash, we will receive the exercise price thereof. The
Registered Holders may sell some or all of the shares of Common
Stock covered by this prospectus from time to time or may decide
not to sell any of the shares of Common Stock covered by this
prospectus. The Registered Holders will act independently of us in
making decisions with respect to the timing, manner and size of
each sale. Such sales may be made on one or more exchanges or in
the over-the-counter market or otherwise, at prices and under terms
then prevailing or at prices related to the then-current market
price or in negotiated transactions. The Registered Holders may
dispose of their shares by one or more of, or a combination of, the
following methods:
•distributions
to members, partners, stockholders or other equityholders of the
Registered Holders;
•purchases
by a broker-dealer as principal and resale by such broker-dealer
for its own account pursuant to this prospectus;
•ordinary
brokerage transactions and transactions in which the broker
solicits purchasers;
•block
trades in which the broker-dealer so engaged will attempt to sell
the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
•an
over-the-counter distribution in accordance with the rules of the
NYSE;
•through
trading plans entered into by a Registered Holder pursuant to Rule
10b5-1 under the Exchange Act, that are in place at the time of an
offering pursuant to this prospectus and any applicable prospectus
supplement hereto that provide for periodic sales of their
securities on the basis of parameters described in such trading
plans;
•to
or through underwriters or broker-dealers;
•in
“at the market” offerings, as defined in Rule 415 under the
Securities Act, at negotiated prices, at prices prevailing at the
time of sale or at prices related to such prevailing market prices,
including sales made directly on a national securities exchange or
sales made through a market maker other than on an exchange or
other similar offerings through sales agents;
•in
privately negotiated transactions;
•in
options transactions;
•through
a combination of any of the above methods of sale; or
•any
other method permitted pursuant to applicable law.
In addition, any shares that qualify for sale pursuant to Rule 144
promulgated under the Securities Act, or Rule 144, may be sold
under Rule 144 rather than pursuant to this prospectus. A
Registered Holder that is an entity may elect to make an in-kind
distribution of Common Stock to its members, partners, stockholders
or other equityholders pursuant to the registration statement of
which this prospectus forms a part by delivering a prospectus. To
the extent that such members, partners, stockholders or other
equityholders are not affiliates of ours, such members, partners,
stockholders or other equityholders would thereby receive freely
tradable shares of Common Stock pursuant to a distribution pursuant
to the registration statement of which this prospectus forms a
part.
To the extent required, this prospectus may be amended or
supplemented from time to time to describe a specific plan of
distribution. In connection with distributions of the shares or
otherwise, the Registered Holders may enter into hedging
transactions with broker-dealers or other financial institutions.
In connection with such transactions, broker-dealers or other
financial institutions may engage in short sales of shares of
Common Stock in the course of hedging the positions they assume
with Registered Holders. The Registered Holders may also sell
shares of Common Stock short and redeliver the shares to close out
such short positions. The Registered Holders may also enter into
option or other transactions with broker-dealers or other financial
institutions that require the delivery to such broker-dealer or
other financial institution of shares offered by this prospectus,
which shares such broker-dealer or other financial institution may
resell pursuant to this prospectus (as supplemented or amended to
reflect such transaction). The Registered Holders may also pledge
shares to a broker-dealer or other financial institution, and, upon
a default, such broker-dealer or other financial institution, may
effect sales of the pledged shares pursuant to this prospectus (as
supplemented or amended to reflect such transaction).
A Registered Holder may enter into derivative transactions with
third parties, or sell securities not covered by this prospectus to
third parties in privately negotiated transactions. If the
applicable prospectus supplement indicates, in connection with
those derivatives, the third parties may sell securities covered by
this prospectus and the applicable prospectus supplement, including
in short sale transactions. If so, the third party may use
securities pledged by any Registered Holder or borrowed from any
Registered Holder or others to settle those sales or to close out
any related open borrowings of stock, and may use securities
received from any Registered Holder in settlement of those
derivatives to close out any related open borrowings of stock. The
third party in such sale transactions will be an underwriter and
will be identified in the applicable prospectus supplement (or a
post-effective amendment). In addition, any Registered Holder may
otherwise loan or pledge securities to a financial institution or
other third party that in turn may sell the securities short using
this prospectus. Such financial institution or other third party
may transfer its economic short position to investors in our
securities or in connection with a concurrent offering of other
securities.
In effecting sales, broker-dealers or agents engaged by the
Registered Holders may arrange for other broker-dealers to
participate. Broker-dealers or agents may receive commissions,
discounts or concessions from the Registered Holders in amounts to
be negotiated immediately prior to the sale.
In offering the shares covered by this prospectus, the Registered
Holders and any broker-dealers who execute sales for the Registered
Holders may be deemed to be “underwriters” within the meaning of
the Securities Act in connection with such sales. Any profits
realized by the Registered Holders and the compensation of any
broker-dealer may be deemed to be underwriting discounts and
commissions.
In order to comply with the securities laws of certain states, if
applicable, the shares must be sold in such jurisdictions only
through registered or licensed brokers or dealers.
We have advised the Registered Holders that the anti-manipulation
rules of Regulation M under the Exchange Act may apply to sales of
shares in the market and to the activities of the Registered
Holders and their affiliates. In addition, we will make copies of
this prospectus available to the Registered Holders for the purpose
of satisfying the prospectus delivery requirements of the
Securities Act. The Registered Holders may indemnify any
broker-dealer that participates in transactions involving the sale
of the shares against certain liabilities, including liabilities
arising under the Securities Act.
At the time a particular offer of shares is made, if required, a
prospectus supplement will be distributed that will set forth the
number of shares being offered and the terms of the offering,
including the name of any underwriter, dealer or agent, the
purchase price paid by any underwriter, any discount, commission
and other item constituting compensation, any discount, commission
or concession allowed or reallowed or paid to any dealer, and the
proposed selling price to the public.
LEGAL MATTERS
The validity of the Common Stock being offered by this prospectus
has been passed upon for us by Potter Anderson & Corroon LLP.
Certain other legal matters will be passed upon for us by Latham
& Watkins LLP.
EXPERTS
The financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K for the year ended
December 31, 2022 have been so incorporated in reliance on the
report (which contains an explanatory paragraph relating to the
Company's ability to continue as a going concern as described in
Note 1 to the financial statements) of PricewaterhouseCoopers LLP,
an independent registered public accounting firm, given on the
authority of said firm as experts in auditing and
accounting.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
Other Expenses of Issuance and Distribution
The following is an estimate of the expenses (all of which are to
be paid by the registrant) that we may incur in connection with the
securities being registered hereby.
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SEC registration fee
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$ |
6,646 |
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Legal fees and expenses
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50,000 |
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Accounting fees and expenses
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$ |
50,000 |
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Miscellaneous
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$ |
3,354 |
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Total
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$ |
110,000 |
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Item 15.
Indemnification of Directors and Officers
Section 102 of the DGCL permits a corporation to eliminate the
personal liability of directors of a corporation to the corporation
or its stockholders for monetary damages for a breach of fiduciary
duty as a director, except where the director breached his duty of
loyalty, failed to act in good faith, engaged in intentional
misconduct or knowingly violated a law, authorized the payment of a
dividend or approved a stock repurchase in violation of Delaware
corporate law or obtained an improper personal benefit. Our
certificate of incorporation provides that no director of the
Registrant shall be personally liable to it or its stockholders for
monetary damages for any breach of fiduciary duty as a director,
notwithstanding any provision of law imposing such liability,
except to the extent that the DGCL prohibits the elimination or
limitation of liability of directors for breaches of fiduciary
duty.
Section 145 of the DGCL provides that a corporation has the power
to indemnify a director, officer, employee, or agent of the
corporation, or a person serving at the request of the corporation
for another corporation, partnership, joint venture, trust or other
enterprise in related capacities against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with
an action, suit or proceeding to which he was or is a party or is
threatened to be made a party to any threatened, ending or
completed action, suit or proceeding by reason of such position, if
such person 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, in any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, except that,
in the case of actions brought by or in the right of the
corporation, no indemnification shall be made with respect to any
claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or other adjudicating court
determines that, despite the adjudication of liability but in view
of all of the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
Our certificate of incorporation provides that we will indemnify
each person who was or is a party or threatened to be made a party
to any threatened, pending or completed action, suit or proceeding
(other than an action by or in the right of us) by reason of the
fact that he or she is or was, or has agreed to become, a director
or officer, or is or was serving, or has agreed to serve, at our
request as a director, officer, partner, employee or trustee of, or
in a similar capacity with, another corporation, partnership, joint
venture, trust or other enterprise (all such persons being referred
to as an “Indemnitee”), or by reason of any action alleged to have
been taken or omitted in such capacity, against all expenses
(including attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with such
action, suit or proceeding and any appeal therefrom, if such
Indemnitee acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, our best interests, and, with
respect to any criminal action or proceeding, he or she had no
reasonable cause to believe his or her conduct was unlawful. Our
certificate of incorporation provides that we will indemnify any
Indemnitee who was or is a party to an action or suit by or in the
right of us to procure a judgment in our favor by reason of the
fact that the Indemnitee is or was, or has agreed to become, a
director or officer, or is or was serving, or has agreed to serve,
at our request as a director, officer, partner, employee or trustee
of, or in a similar capacity with, another corporation,
partnership, joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in such
capacity, against all expenses (including attorneys’ fees) and, to
the extent permitted by law, amounts paid in
settlement actually and reasonably incurred in connection with such
action, suit or proceeding, and any appeal therefrom, if the
Indemnitee acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, our best interests, except
that no indemnification shall be made with respect to any claim,
issue or matter as to which such person shall have been adjudged to
be liable to us, unless a court determines that, despite such
adjudication but in view of all of the circumstances, he or she is
entitled to indemnification of such expenses. Notwithstanding the
foregoing, to the extent that any Indemnitee has been successful,
on the merits or otherwise, he or she will be indemnified by us
against all expenses (including attorneys’ fees) actually and
reasonably incurred in connection therewith. Expenses must be
advanced to an Indemnitee under certain circumstances.
We have entered into indemnification agreements with each of our
directors and officers. These indemnification agreements may
require us, among other things, to indemnify our directors and
officers for some expenses, including attorneys’ fees, judgments,
fines and settlement amounts incurred by a director or officer in
any action or proceeding arising out of his or her service as one
of our directors or officers, or any of our subsidiaries or any
other company or enterprise to which the person provides services
at our request.
We maintain a general liability insurance policy that covers
certain liabilities of directors and officers of our corporation
arising out of claims based on acts or omissions in their
capacities as directors or officers.
In any underwriting agreement we enter into in connection with the
sale of Common Stock being registered hereby, the underwriters may
agree to indemnify, under certain conditions, us, Registered
Holders, our directors, our officers and persons who control us
within the meaning of the Securities Act against certain
liabilities.
Item 16.
Exhibits
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Exhibit
Number
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Description |
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3.1 |
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3.2 |
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3.3 |
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4.1 |
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5.1 |
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10.1 |
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10.2 |
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10.3 |
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Amended and Restated Stockholders Agreement, dated February 17,
2023, by and among Owlet, Inc., Eclipse Ventures Fund, L.P.,
Eclipse Continuity Fund I, L.P. and Eclipse Early Growth Fund I,
L.P. (incorporated
by reference to Exhibit 10.3 of the Company’s Current Report on
Form 8-K filed with the SEC on February 21, 2023).
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10.4 |
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23.1 |
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23.2 |
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24.1 |
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107 |
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Item 17.
Undertakings
(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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than 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 the registration
statement or any material change to such information in the
registration statement;
provided,
however,
that paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) above do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is a part of the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(5) That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by the registrant pursuant to Rule
424(b)(3) shall be deemed to be part of the registration statement
as of the date the filed prospectus was deemed part of and included
in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration statement in
reliance on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by section 10(a) of the Securities Act of 1933
shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which
that prospectus relates, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
(6) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in the
initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used
to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities
to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant
to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared
by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to
the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv) Any other communications that is an offer in the offering made
by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Lehi, Utah, on April 26, 2023.
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OWLET, INC. |
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By:
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/s/ Kurt Workman |
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Kurt Workman
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Chief Executive Officer |
POWER OF ATTORNEY
Each of the undersigned officers and directors of the registrant
hereby severally constitutes and appoints Kurt Workman and Kathryn
R. Scolnick, or either of them, as his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and
stead, and in any and all capacities, to file and sign any and all
amendments, including post-effective amendments, to this
registration statement and any other registration statement for the
same offering that is to be effective under Rule 462(b) of the
Securities Act of 1933, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, full power and authority to do and
perform each and every act and thing requisite and necessary to be
done in connection therewith and about the premises as fully to all
intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof. This power of attorney shall be
governed by and construed with the laws of the State of Delaware
and applicable federal securities laws.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the
following persons on behalf of the registrant in the capacities and
on the dates indicated.
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SIGNATURE |
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TITLE |
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DATE |
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/s/ Kurt Workman
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Chief Executive Officer and Director
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April 26, 2023
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Kurt Workman |
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(principal executive officer) |
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/s/ Kathryn R. Scolnick
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Chief Financial Officer
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April 26, 2023
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Kathryn R. Scolnick |
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(principal financial officer and
principal accounting officer) |
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/s/ Lior Susan
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Chairman of the Board of Directors |
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April 26, 2023
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Lior Susan |
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/s/ Zane Burke
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Director |
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April 26, 2023
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Zane Burke |
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/s/ Laura J. Durr
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Director |
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April 26, 2023
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Laura Durr |
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/s/ John Kim
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Director |
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April 26, 2023
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John Kim |
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/s/ Jayson Knafel
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Director |
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April 26, 2023
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Jayson Knafel |
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/s/ Amy McCullough |
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Director |
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April 26, 2023
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Amy McCullough |
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