Item 1.01 Entry into a Material Definitive Agreement.
On September 14, 2021, MoSys, Inc. (the "Company") and its newly formed
subsidiaries, 2864552 Ontario Inc. ("Callco") and 2864555 Ontario Inc.
("Canco"), both corporations existing under the laws of the province of Ontario,
entered into an Arrangement Agreement (the "Agreement") with Peraso Technologies
Inc., a corporation existing under the laws of the province of Ontario
("Peraso"). Under the Agreement, the Company, indirectly through Canco, is to
acquire all of the issued and outstanding common shares of Peraso ("Peraso
Shares"), including those Peraso Shares to be issued in connection with the
conversion or exchange of secured convertible debentures of Peraso and common
share purchase warrants of Peraso, as applicable, by way of a statutory plan of
arrangement (the "Arrangement") under the Business Corporations Act (Ontario)
(the "OBCA"), on and subject to the terms and conditions of the Agreement.
Exchange of Securities
The Agreement provides that the Peraso stockholders may elect to receive either
shares of the Company's common stock (the "Common Stock") or shares of the
capital stock of Canco (the "Exchangeable Shares") in exchange for such holder's
Peraso Shares, in each case based on an exchange ratio (the "Exchange Ratio") to
be determined based on the number of Peraso Shares and shares of Common Stock
outstanding as of immediately prior to the effective time of the Arrangement
(the "Effective Time"). Pursuant to the terms of the Agreement, at the Effective
Time, the Company shall hold an aggregate of 1,815,445 Exchangeable Shares and
Common Stock (collectively, the "Earnout Shares"). Such Earnout Shares shall be
escrowed pursuant to the terms of an escrow agreement on a pro rata basis from
the aggregate consideration to be received by the Peraso stockholders, subject
to the offset by the Company for any losses in accordance with the
Agreement. Such Earnout Shares shall be released, subject to any offset claim,
upon the satisfaction of the earlier of: (a) any date following the first
anniversary of the Effective Time and prior to the third anniversary of the
Effective Time where the volume weighted average price of the Common Stock for
any 20 trading days within a period of 30 consecutive trading days is at least
$8.57 per share, subject to adjustment for stock splits or other similar
transaction; (b) the date of any sale of all or substantially all of the assets
or shares of the Company; or (c) the date of any bankruptcy, insolvency,
restructuring, receivership, administration, wind-up, liquidation, dissolution,
or similar event involving the Company.
Following the Effective Time, each Exchangeable Share will be exchangeable by
the holder for one share of Common Stock (subject to customary adjustments for
stock splits or other reorganizations). In addition, the Company may require all
outstanding Exchangeable Shares to be exchanged upon the occurrence of certain
events and at any time following the seventh anniversary of the closing of the
Arrangement. While outstanding, holders of Exchangeable Shares will be entitled
to cast votes on matters for which holders of Common Stock are entitled to vote
and will be entitled to receive dividends economically equivalent to the
dividends declared by the Company with respect to the Common Stock. Eligibility
to receive Exchangeable Shares will be subject to certain Canadian residency
restrictions and tax statuses.
The Agreement also provides that Peraso stock options, which are exercisable for
Peraso Shares, will be replaced with an option to acquire Common Stock to be
issued by the Company in consideration for cancellation of the Peraso options
and exercisable for shares of Common Stock after the Effective Time, in each
case with adjustments based on the Exchange Ratio. The exact number of shares of
Common Stock that will be issued pursuant to the Arrangement will be determined
at the Effective Time in accordance with the Exchange Ratio.
Immediately following the Effective Time, based on the Exchange Ratio, the
former stockholders of Peraso are anticipated to own approximately 61% of the
economic and voting interest of the combined company with the Company's current
stockholders holding the remaining 39% economic and voting interest, as
calculated on a fully-diluted basis and including the Earnout Shares.
Post-Closing Governance
At the Effective Time, all members of the Company's board of directors other
than Daniel Lewis and Robert Newell will resign and the combined company's board
of directors (the "New Board") will be comprised of five directors, consisting
of Ronald Glibbery, Daniel Lewis, Robert Newell, and two Peraso director
nominees that will be considered independent directors under the Nasdaq Stock
Market ("Nasdaq") listing rules.
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Additionally, at the Effective Time, the executive officers of the combined
company will consist of: Ronald Glibbery, as Chief Executive Officer; Daniel
Lewis, as President; James Sullivan, as Chief Financial Officer; Brad Lynch as
Chief Operating Officer; and Alexander Tomkins as Chief Technology Officer.
In connection with the Arrangement, the Company will prepare and file with the
U.S. Securities and Exchange Commission ("SEC") a proxy statement, and will seek
the approval of the Company's stockholders with respect to certain actions,
including, but not limited to, the following (the "Approval Matters"):
(i) the issuance of Common Stock to the Peraso stockholders
pursuant to the Agreement and the change of control of the
Company resulting from the Arrangement pursuant to pertinent
Nasdaq listing rules;
(ii) the amendment of the Company's certificate of incorporation to
effect a reverse split of all outstanding shares of the Common
Stock at a reverse stock split ratio of up to one-to-three if
determined by the Company's board of directors; and
(iii) the amendment of the MoSys, Inc. 2019 Stock Incentive Plan to
increase the number of shares of Common Stock reserved for
awards to 15% of the number of shares of Common Stock of the
combined company outstanding immediately after the Effective
Time on a fully-diluted basis.
Voting Agreements
The transaction has been unanimously approved by the board of directors of
Peraso, and each director, senior officer and 10% stockholder of Peraso
(determined on a fully-diluted basis) has executed a voting agreement (each such
agreement - a "Peraso Voting Agreement") and agreed to vote for approval of the
Arrangement at the meeting of Peraso stockholders. Analogously, all of the
senior officers and directors of the Company have executed a voting agreement
(each such agreement - a "MoSys Voting Agreement") and agreed to vote for
approval of the Approval Matters. The foregoing description of the Peraso Voting
Agreements and MoSys Voting Agreements does not purport to be complete and is
qualified in its entirety by reference to the terms of the Peraso Voting
. . .
Item 3.02. Unregistered Sales of Equity Securities.
The disclosure under Item 1.01 of this Current Report on Form 8-K relating to
the Agreement and the issuance of the shares of Common Stock and the
Exchangeable Shares is incorporated herein by reference.
The securities to be issued under the Agreement will be issued in reliance upon
Section 3(a)(10) of the Securities Act of 1933, as amended (the "Securities
Act"), which exempts from the registration requirements under the Securities Act
any securities that are issued in exchange for one or more bona fide outstanding
securities where the terms and conditions of such issuance and exchange are
approved, after a hearing upon the fairness of such terms and conditions at
which all persons to whom it is proposed to issue securities in such exchange
shall have the right to appear, by any court expressly authorized by law to
grant such approval.
Forward-Looking Statements
This current report contains forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended, which are intended to be covered by
the "safe harbor" created by those sections. All statements in this current
report that are not based on historical fact are "forward looking statements."
These statements may be identified by words such as "estimates," "anticipates,"
"projects," "plans," "strategy," "goal," or "planned," "seeks," "may," "might,"
"will," "expects," "intends," "believes," "should," and similar expressions, or
the negative versions thereof, and which also may be identified by their
context. All statements that address operating performance, development of the
events, objectives or goals, refinement of strategy, and anticipation of certain
behavior of stockholders in connection with the Company, Peraso, or the
Agreement, the expected synergies, and other financial benefits from the
Arrangement, that are not otherwise historical facts, are forward-looking
statements. While management has based any forward-looking statements included
in this current report on its current expectations, the information on which
such expectations were based may change. Forward-looking statements involve
inherent risks and uncertainties which could cause actual results to differ
materially from those in the forward-looking statements as a result of various
factors, including, but not limited to, the following: the ability of the
Company and Peraso to obtain stockholder approval for the Arrangement and
related transactions; the ability of Peraso to obtain court approval for the
plan of arrangement implementing the Arrangement; the ability of the combined
company to successfully maintain a Nasdaq Capital Market listing; the ability of
the combined company to successfully integrate the operations of the Company and
Peraso; conditions to the closing of the Arrangement may not be satisfied or
that the Arrangement may involve unexpected costs, liabilities, or delays; the
occurrence of any other risks to consummation of the Arrangement, including the
risk that the Arrangement will not be consummated within the expected time
period or any event, change or other circumstances that could give rise to the
termination of the Agreement; risks that the Arrangement disrupts
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current the Company's plans and operations or that the business or stock price
of the Company may suffer as a result of uncertainty surrounding the
Arrangement; risks related to the COVID-19 pandemic, including public health
requirements in response to the outbreak of COVID-19 and the impact on the
Company's business and operations; and the Company or Peraso may be adversely
affected by other economic, business, or competitive factors.. Furthermore,
general economic factors, competition in the industry and other factors that
could cause actual results to be materially different from those described
herein as anticipated, believed, estimated, or expected. Additional risks and
uncertainties are described in or implied by the Risk Factors and Management's
Discussion and Analysis of Financial Condition and Results of Operations
sections of the Company's 2020 Annual Report on Form 10-K, filed with the SEC on
March 18, 2021 and other reports filed from time to time with the SEC. The
Company urges you to consider those risks and uncertainties in evaluating its
forward-looking statements. Readers are cautioned to not place undue reliance
upon any such forward-looking statements, which speak only as of the date made.
Except as otherwise required by the federal securities laws, the Company
disclaims any obligation or undertaking to publicly release any updates or
revisions to any forward-looking statement contained herein (or elsewhere) to
reflect any change in its expectations with regard thereto, or any change in
events, conditions, or circumstances on which any such statement is based.
Additional Information and Where to Find It
The Company will prepare a proxy statement for the Company's stockholders to be
filed with the SEC. The proxy statement will be mailed to the Company's
stockholders. The Company urges investors, stockholders and other interested
persons to read, when available, the proxy statement, as well as other documents
filed with the SEC, because these documents will contain important information
about the proposed business combination transaction. Such persons can also read
the Company's Annual Report on Form 10-K for the fiscal year ended December 31,
2020, for a description of the security holdings of its officers and directors
and their respective interests as security holders in the consummation of the
transactions described herein. The Company's definitive proxy statement will be
mailed to stockholders of the Company as of a record date to be established for
voting on the transactions described in this Current Report on Form 8-K. The
Company's stockholders will also be able to obtain a copy of such documents,
without charge, by directing a request to the Chief Financial Officer of the
Company at 2309 Bering Drive, San Jose, California 95131; e-mail:
priv_IR@mosys.com. These documents, once available, can also be obtained,
without charge, at the SEC's web site (http://www.sec.gov).
Participants in Solicitation
The Company, Peraso and their respective directors, executive officers and other
members of their management and employees, under SEC rules, may be deemed to be
participants in the solicitation of proxies of the Company stockholders in
connection with the proposed business combination. Investors and security
holders may obtain more detailed information regarding the names, affiliations,
and interests of the Company's directors in its Annual Report on Form 10-K for
the fiscal year ended December 31, 2020, which was filed with the SEC on March
18, 2021. Information regarding the persons who may, under SEC rules, be deemed
participants in the solicitation of proxies to the Company's stockholders in
connection with the proposed business combination will be set forth in the proxy
statement for the proposed business combination when available. Information
concerning the interests of the Company's and Peraso's participants in the
. . .
Item 7.01 Regulation FD Disclosure.
On September 15, 2021, the Company and Peraso issued a joint press release
announcing the execution of the Agreement. A copy of the press release is
attached as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated
herein by reference.
Also on September 15, 2021, the Company released an investor presentation made
by representatives of Peraso and the Company (the "Investor Presentation") in
connection with the announcement of the Agreement. The Investor Presentation
provides information on both the Company and Peraso and an overview of the
strategic rationale for the Arrangement. A copy of the Investor Presentation and
related transcript are attached hereto as Exhibits 99.2 and 99.3, respectively,
and are incorporated herein by reference.
The information furnished with this Item 7.01, including Exhibits 99.1, 99.2 and
99.3, shall not be deemed "filed" for purposes of Section 18 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to
the liabilities of that section, nor shall it be deemed incorporated by
reference into any other filing under the Securities Act of 1933, as amended, or
the Exchange Act, except as expressly set forth by specific reference in such a
filing.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. Description
2.1* Arrangement Agreement with Peraso Technologies Inc.
10.1 Form of Peraso Technologies Inc. Voting Agreement
10.2 Form of MoSys, Inc. Voting Agreement
99.1 Press Release by MoSys, Inc. and Peraso Technologies Inc. dated
September 15, 2021
99.2 Investor Presentation
99.3 Investor Presentation Transcript
104 The cover page of this Current Report on Form 8-K, formatted in Inline
XBRL
* Certain schedules, exhibits and similar attachments have been omitted
pursuant to Item 601(a)(5) of Regulation S-K. The Company hereby
undertakes to furnish copies of such omitted materials supplementally upon
request by the SEC.
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