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EX-10.15 - FAST-START SMART GRID PROJECT MASTER AGREEMENT - SILVER SPRING NETWORKS INCd17578dex1015.htm

As filed with the Securities and Exchange Commission on February 15, 2013

Registration No. 333-175393

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

 

Amendment No. 12

to

Form S-1

Registration Statement Under The Securities Act of 1933

 

 

Silver Spring Networks, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware    3576    43-1966972

(State or other jurisdiction of

incorporation or organization)

  

(Primary Standard Industrial

Classification Code Number)

  

(IRS Employer

Identification No.)

Silver Spring Networks, Inc.

555 Broadway Street

Redwood City, California 94063

(650) 298-4200

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

Scott Lang

Chairman of the Board, President and Chief Executive Officer

Silver Spring Networks, Inc.

555 Broadway Street

Redwood City, California 94063

(650) 298-4200

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

Please send copies of all communications to:

 

Gordon K. Davidson, Esq.

Robert A. Freedman, Esq.

Sayre E. Stevick, Esq.

Michael A. Brown, Esq.

Fenwick & West LLP

801 California Street

Mountain View, California 94041

(650) 988-8500

 

David B. Leeb, Esq.

Silver Spring Networks, Inc.

555 Broadway Street

Redwood City, California 94063

(650) 298-4200

 

Alan F. Denenberg, Esq.

Sarah K. Solum, Esq.

Davis Polk & Wardwell LLP

1600 El Camino Real

Menlo Park, California 94025

(650) 752-2000

Approximate date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective.

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, 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, 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 post-effective amendment filed pursuant to Rule 462(d) 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.  ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

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

 

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.

 

 

 


EXPLANATORY NOTE

This Amendment No. 12 is being filed solely for the purposes of filing Exhibit 10.15 and amending the disclosures in Item 16 of Part II of the Registration Statement (Commission File No. 333-175393). No changes or additions are being made hereby to the Prospectus constituting Part I of the Registration Statement (not included herein) or to Items 13, 14, 15 or 17 of Part II of the Registration Statement.


PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 13. Other Expenses of Issuance and Distribution

The following table sets forth all expenses to be paid by the Registrant, other than underwriting discounts and commissions, in connection with this offering. All amounts shown are estimates except for the SEC registration fee and the FINRA filing fee:

 

SEC registration fee

   $ 17,415   

FINRA filing fee

     15,500   

The New York Stock Exchange listing fee

     *   

Printing and engraving

     *   

Legal fees and expenses

     *   

Accounting fees and expenses

     *   

Blue sky fees and expenses

     *   

Transfer agent and registrar fees

     *   

Miscellaneous

     *   
  

 

 

 

Total

   $ *   
  

 

 

 

 

* To be completed by amendment.

Item 14. Indemnification of Directors and Officers

Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers under certain circumstances and subject to certain limitations. The terms of Section 145 of the Delaware General Corporation Law are sufficiently broad to permit indemnification under certain circumstances for liabilities, including reimbursement of expenses incurred, arising under the Securities Act of 1933, as amended (the “Securities Act”).

As permitted by the Delaware General Corporation Law, the Registrant’s restated certificate of incorporation to be effective upon the closing of this offering contains provisions that eliminate the personal liability of its directors for monetary damages for any breach of fiduciary duties as a director, except liability for the following:

 

  Ÿ  

any breach of the director’s duty of loyalty to the Registrant or its stockholders;

 

  Ÿ  

acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;

 

  Ÿ  

under Section 174 of the Delaware General Corporation Law (regarding unlawful dividends and stock purchases); or

 

  Ÿ  

any transaction from which the director derived an improper personal benefit.

As permitted by the Delaware General Corporation Law, the Registrant’s restated bylaws to be effective upon the closing of this offering, provide that:

 

  Ÿ  

the Registrant is required to indemnify its directors and executive officers to the fullest extent permitted by the Delaware General Corporation Law, subject to very limited exceptions;

 

  Ÿ  

the Registrant may indemnify its other employees and agents as set forth in the Delaware General Corporation Law;

 

II-1


  Ÿ  

the Registrant is required to advance expenses, as incurred, to its directors and executive officers in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to very limited exceptions; and

 

  Ÿ  

the rights conferred in the bylaws are not exclusive.

Prior to the closing of this offering, the Registrant has entered into indemnification agreements with each of its current directors and executive officers to provide these directors and executive officers additional contractual assurances regarding the scope of the indemnification set forth in the Registrant’s restated certificate of incorporation and restated bylaws and to provide additional procedural protections. There is no pending litigation or proceeding involving a director or executive officer of the Registrant for which indemnification is sought. Reference is also made to Section 11 of the underwriting agreement to be filed as Exhibit 1.1 to this registration statement, which provides for the indemnification of executive officers, directors and controlling persons of the Registrant against certain liabilities. The indemnification provisions in the Registrant’s restated certificate of incorporation, restated bylaws and the indemnification agreements entered into or to be entered into between the Registrant and each of its directors and executive officers may be sufficiently broad to permit indemnification of the Registrant’s directors and executive officers for liabilities arising under the Securities Act.

The Registrant currently carries liability insurance for its directors and officers.

Two of Registrant’s directors (Benjamin Kortlang and Warren M. Weiss) are also indemnified by their employers with regard to their service on the Registrant’s Board of Directors.

Reference is made to the following documents filed as exhibits to this Registration Statement regarding relevant indemnification provisions described above and elsewhere herein:

 

Exhibit Title

   Exhibit
Number
 

Form of Underwriting Agreement

     1.1   

Form of Restated Certificate of Incorporation of the Registrant, to be in effect upon the closing of this offering

     3.2   

Form of Restated Bylaws of the Registrant, to be in effect upon the closing of this offering

     3.4   

Fourth Amended and Restated Investors’ Rights Agreement, dated December 11, 2009, by and among Registrant and certain security holders of the Registrant

     4.2   

Form of Indemnification Agreement

     10.1   

Item 15. Recent Sales of Unregistered Securities

Since January 1, 2010 and through December 31, 2012, the Registrant has issued and sold the following securities:

1. Since January 1, 2010 and through December 31, 2012, the Registrant has granted to its directors, officers, employees and consultants options to purchase 2,495,423 shares of common stock under its 2003 Plan with per share exercise prices ranging from $34.90 to $51.35, and has issued 597,011 shares of common stock upon exercise of such options, as well as 262,144 restricted stock units under its 2003 Plan. These transactions were exempt from the registration requirements of the Securities Act in reliance upon Rule 701 promulgated under the Securities Act, Section 4(2) of the Securities Act or Regulation D promulgated under the Securities Act.

2. In December 2009, the Registrant issued one warrant exercisable for 7,759 shares of the Registrant’s Series E convertible preferred stock and up to an additional 7,761 shares of the

 

II-2


Registrant’s Series E convertible preferred stock, at an exercise price of $50.00 per share to a sophisticated accredited investor. In December 2010, the Registrant granted 2,367 shares of the additional shares to the investor and in May 2011, the Registrant granted the remaining 5,394 shares of the additional shares to the investor, such that the warrant was exercisable for 15,520 shares of the Registrant’s Series E convertible preferred stock. This transaction was exempt from the registration requirements of the Securities Act in reliance upon Section 4(2) of the Securities Act or Regulation D promulgated under the Securities Act.

3. In March 2011, the Registrant issued one warrant exercisable for 50,000 shares of Registrant’s common stock at an exercise price of $0.005 per share to a sophisticated accredited investor. This transaction was exempt from the registration requirements of the Securities Act in reliance upon Section 4(2) of the Securities Act or Regulation D promulgated under the Securities Act.

4. In December 2011, the Registrant issued a subordinated convertible note to a sophisticated accredited investor that, together with accrued interest thereon, will convert into                 shares of common stock immediately prior to the closing of this offering based on an assumed initial public offering price of $             per share, the midpoint of the range set forth on the cover of the prospectus. This transaction was exempt from the registration requirements of the Securities Act in reliance upon Section 4(2) of the Securities Act or Regulation D promulgated under the Securities Act.

5. In February 2012, the Registrant issued a subordinated convertible note to a sophisticated accredited investor that, together with accrued interest thereon, will convert into                 shares of common stock immediately prior to the closing of this offering based on an assumed initial public offering price of $            per share, the midpoint of the range set forth on the cover of the prospectus. This transaction was exempt from the registration requirements of the Securities Act in reliance upon Section 4(2) of the Securities Act or Regulation D promulgated under the Securities Act.

None of the foregoing transactions involved any underwriters, underwriting discounts or commissions, or any public offering, and the Registrant believes each transaction was exempt from the registration requirements of the Securities Act as stated above. All recipients of the foregoing transactions either received adequate information about the Registrant or had access, through their relationships with the Registrant, to such information. Furthermore, the Registrant affixed appropriate legends to the share certificates and instruments issued in each foregoing transaction setting forth that the securities had not been registered and the applicable restrictions on transfer.

Item 16. Exhibits and Financial Statement Schedules

(a) Exhibits.    The following exhibits are included herein or incorporated herein by reference:

 

Exhibit

Number

  

Description of Exhibit

   Incorporated by Reference    Filed
Herewith
      Form    File No.    Exhibit    Filing Date   

  1.1*

  

Form of Underwriting Agreement.

              

  3.1  

  

Seventh Restated Certificate of Incorporation of the Registrant, as amended.

   S-1    333-175393    3.1    2/12/2013   

  3.2  

  

Form of Restated Certificate of Incorporation of the Registrant, to be in effect upon the closing of this offering.

   S-1    333-175393    3.2    10/12/2011   

  3.3  

  

Bylaws of the Registrant.

   S-1    333-175393    3.3    7/7/2011   

  3.4  

  

Form of Restated Bylaws of the Registrant, to be in effect upon the closing of this offering.

   S-1    333-175393    3.4    10/12/2011   

 

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Exhibit

Number

  

Description of Exhibit

   Incorporated by Reference    Filed
Herewith
      Form    File No.    Exhibit    Filing Date   

  4.1  

  

Form of Registrant’s common stock certificate.

   S-1    333-175393    4.1    11/30/2012   

  4.2  

  

Fourth Amended and Restated Investors’ Rights Agreement, dated December 11, 2009, by and among Registrant and certain security holders of the Registrant.

   S-1    333-175393    4.2    7/7/2011   

  5.1*

  

Opinion of Fenwick & West LLP.

              

10.1  

  

Form of Indemnification Agreement.

   S-1    333-175393    10.1    7/7/2011   

10.2  

  

2003 Stock Option Plan, as amended, and forms of stock option agreement, stock option exercise agreement, restricted stock agreement and restricted stock unit agreement.

   S-1    333-175393    10.2    1/22/2013   

10.3  

  

2012 Equity Incentive Plan, to become effective on the day before the date the registration statement is declared effective, and forms of stock option award agreement, restricted stock agreement, stock appreciation right award agreement, restricted stock unit award agreement, performance shares award agreement and stock bonus award agreement.

   S-1    333-175393    10.3    6/14/2012   

10.4    

  

2012 Employee Stock Purchase Plan, to become effective on the date the registration statement is declared effective, and form of subscription agreement.

   S-1    333-175393    10.4    6/14/2012   

10.5    

  

Offer Letter Employment Agreement, dated June 24, 2004, between the Registrant and Scott A. Lang.

   S-1    333-175393    10.5    7/7/2011   

10.6    

  

Letter Agreement, dated September 11, 2008, between the Registrant and Scott A. Lang.

   S-1    333-175393    10.6    7/7/2011   

10.7    

  

Letter Agreement, dated December 17, 2009, between the Registrant and Scott A. Lang.

   S-1    333-175393    10.7    7/7/2011   

10.8    

  

Offer Letter Employment Agreement, dated November 21, 2011, between the Registrant and Ingrid J. Van Den Hoogen.

   S-1    333-175393    10.8    1/22/2013   

10.9    

  

Change of Control Letter Agreement, dated March 24, 2011, between the Registrant and Eric P. Dresselhuys, as amended.

   S-1    333-175393    10.13    7/7/2011   

 

II-4


Exhibit

Number

  

Description of Exhibit

   Incorporated by Reference    Filed
Herewith
      Form    File No.    Exhibit    Filing Date   

10.10  

  

Lease Agreement, dated July 5, 2007, as amended, between the Registrant and the Board of Trustees of The Leland Stanford Junior University.

   S-1    333-175393    10.14    6/14/2012   

10.11†

  

SmartMeter Program Upgrade Supply Agreement, dated July 23, 2008, as amended, between the Registrant and Pacific Gas and Electric Company.

   S-1    333-175393    10.15    10/12/2011   

10.12†

  

Master Services and Software License Agreement, dated August 1, 2007, between the Registrant and Florida Power & Light Company.

   S-1    333-175393    10.16    10/12/2011   

10.13  

  

Non-Plan Restricted Stock Grant Agreement, dated November 19, 2008, between the Registrant and Warren C. Jenson.

   S-1    333-175393    10.17    7/7/2011   

10.14  

  

Common Stock Purchase Agreement, dated September 19, 2012, between the Registrant and affiliates of Foundation Capital.

   S-1    333-175393    10.19    11/30/2012   

10.15†

  

Fast-Start Smart Grid Project Master Agreement, dated October 15, 2009, between the Registrant and Oklahoma Gas and Electric.

               X

23.1    

  

Consent of Independent Registered Public Accounting Firm.

   S-1    333-175393    23.1    2/12/2013   

23.2*  

  

Consent of Fenwick & West LLP (included in Exhibit 5.1).

              

24.1    

  

Power of Attorney.

   S-1    333-175393    24.1    7/7/2011   

99.1    

  

Consent of Pike Research LLC.

   S-1    333-175393    99.1    7/7/2011   

99.2    

  

Consent of IDC Energy Insights.

   S-1    333-175393    99.2    1/22/2013   

 

* To be filed by amendment.
Registrant has omitted portions of the referenced exhibit and filed such exhibit separately with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 promulgated under the Securities Act.

 

(b) Financial Statement Schedules.    All financial statement schedules are omitted because they are not applicable or the information is included in the Registrant’s consolidated financial statements or related notes.

Item 17. Undertakings

The undersigned Registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement, certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

 

II-5


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

The undersigned Registrant hereby undertakes that:

(1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.

(2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus 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.

 

II-6


SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Amendment No. 12 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Redwood City, State of California, on this 15th day of February, 2013.

 

SILVER SPRING NETWORKS, INC.
By:   /s/ Scott A. Lang
  Scott A. Lang
  Chairman of the Board of Directors,
  President and Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 12 to Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

  

Title

 

Date

/s/ Scott A. Lang

Scott A. Lang

  

Chairman of the Board of Directors, President and Chief Executive Officer

(Principal Executive Officer)

  February 15, 2013

/s/ John R. Joyce

John R. Joyce

  

Vice Chairman and Chief Financial Officer

(Principal Financial Officer)

  February 15, 2013

/s/ Carrie Kalinowski

Carrie Kalinowski

  

Vice President, Finance and
Corporate Controller

(Principal Accounting Officer)

  February 15, 2013

*

Benjamin Kortlang

   Director   February 15, 2013

*

Thomas R. Kuhn

   Director   February 15, 2013

*

Corbin A. McNeill, Jr.

   Director   February 15, 2013

*

Jonathan Schwartz

   Director   February 15, 2013

*

Richard A. Simonson

   Director   February 15, 2013

*

Laura D. Tyson

   Director   February 15, 2013

*

Warren M. Weiss

   Director   February 15, 2013

 

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Signature

  

Title

 

Date

*

Thomas H. Werner

   Director   February 15, 2013

* By:

 

/s/ Scott A. Lang

   Attorney-in-Fact   February 15, 2013
  Scott A. Lang     

 

II-8


EXHIBIT INDEX

 

Exhibit

Number

  

Description of Exhibit

   Incorporated by Reference    Filed
Herewith
      Form    File No.    Exhibit    Filing Date   

  1.1*

   Form of Underwriting Agreement.               

  3.1  

   Seventh Restated Certificate of Incorporation of the Registrant, as amended.    S-1    333-175393    3.1    2/12/2013   

  3.2  

   Form of Restated Certificate of Incorporation of the Registrant, to be in effect upon the closing of this offering.    S-1    333-175393    3.2    10/12/2011   

  3.3  

   Bylaws of the Registrant.    S-1    333-175393    3.3    7/7/2011   

  3.4  

   Form of Restated Bylaws of the Registrant, to be in effect upon the closing of this offering.    S-1    333-175393    3.4    10/12/2011   

  4.1  

   Form of Registrant’s common stock certificate.    S-1    333-175393    4.1    11/30/2012   

  4.2  

   Fourth Amended and Restated Investors’ Rights Agreement, dated December 11, 2009, by and among Registrant and certain security holders of the Registrant.    S-1    333-175393    4.2    7/7/2011   

  5.1*

   Opinion of Fenwick & West LLP.               

10.1  

   Form of Indemnification Agreement.    S-1    333-175393    10.1    7/7/2011   

10.2  

   2003 Stock Option Plan, as amended, and forms of stock option agreement, stock option exercise agreement, restricted stock agreement and restricted stock unit agreement.    S-1    333-175393    10.2    1/22/2013   

10.3  

   2012 Equity Incentive Plan, to become effective on the day before the date the registration statement is declared effective, and forms of stock option award agreement, restricted stock agreement, stock appreciation right award agreement, restricted stock unit award agreement, performance shares award agreement and stock bonus award agreement.    S-1    333-175393    10.3    6/14/2012   

10.4  

   2012 Employee Stock Purchase Plan, to become effective on the date the registration statement is declared effective, and form of subscription agreement.    S-1    333-175393    10.4    6/14/2012   

10.5  

   Offer Letter Employment Agreement, dated June 24, 2004, between the Registrant and Scott A. Lang.    S-1    333-175393    10.5    7/7/2011   

10.6  

   Letter Agreement, dated September 11, 2008, between the Registrant and Scott A. Lang.    S-1    333-175393    10.6    7/7/2011   


Exhibit

Number

  

Description of Exhibit

   Incorporated by Reference    Filed
Herewith
      Form    File No.    Exhibit    Filing Date   

10.7  

   Letter Agreement, dated December 17, 2009, between the Registrant and Scott A. Lang.    S-1    333-175393    10.7    7/7/2011   

10.8  

   Offer Letter Employment Agreement, dated November 21, 2011, between the Registrant and Ingrid J. Van Den Hoogen.    S-1    333-175393    10.8    1/22/2013   

10.9    

   Change of Control Letter Agreement, dated March 24, 2011, between the Registrant and Eric P. Dresselhuys, as amended.    S-1    333-175393    10.13    7/7/2011   

10.10  

   Lease Agreement, dated July 5, 2007, as amended, between the Registrant and the Board of Trustees of The Leland Stanford Junior University.    S-1    333-175393    10.14    6/14/2012   

10.11†

   SmartMeter Program Upgrade Supply Agreement, dated July 23, 2008, as amended, between the Registrant and Pacific Gas and Electric Company.    S-1    333-175393    10.15    10/12/2011   

10.12†

   Master Services and Software License Agreement, dated August 1, 2007, between the Registrant and Florida Power & Light Company.    S-1    333-175393    10.16    10/12/2011   

10.13  

   Non-Plan Restricted Stock Grant Agreement, dated November 19, 2008, between the Registrant and Warren C. Jenson.    S-1    333-175393    10.17    7/7/2011   

10.14  

   Common Stock Purchase Agreement, dated September 19, 2012, between the Registrant and affiliates of Foundation Capital.    S-1    333-175393    10.19    11/30/2012   

10.15†  

   Fast-Start Smart Grid Project Master Agreement, dated October 15, 2009, between the Registrant and Oklahoma Gas and Electric.                X

23.1    

   Consent of Independent Registered Public Accounting Firm.    S-1    333-175393    23.1    2/12/2013   

23.2*  

   Consent of Fenwick & West LLP (included in Exhibit 5.1).               

24.1    

   Power of Attorney.    S-1    333-175393    24.1    7/7/2011   

99.1    

   Consent of Pike Research LLC.    S-1    333-175393    99.1    7/7/2011   

99.2    

   Consent of IDC Energy Insights.    S-1    333-175393    99.2    1/22/2013   

 

* To be filed by amendment.
Registrant has omitted portions of the referenced exhibit and filed such exhibit separately with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 promulgated under the Securities Act.